Can non-biological parents be awarded custody?

There are certain situations where non-biological parents can be awarded custody rights by the court, even over the biological father or mother's objections. A non-biological parent can get custody if the court finds the biological parent unfit, if living with the birth parent is not in the child's best interests, or if the biological parent is not available due to desertion, death, or other reasons. For more legal information about non-biological child custody, use the free tool below.

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UPDATED: Jul 14, 2021

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Written By: Jeffrey JohnsonUPDATED: Jul 14, 2021Fact Checked

Child custody court hearings involving non-biological parents, such as stepparents, can be complex. A biological parent will almost always have superior rights to child custody. However, there are certain situations where a non-biological parent can be given custody rights by the court, even over the objections of the biological father or mother.

When May Non-Biological Parents be Awarded Custody? 

A non-biological parent may be awarded custody if: 

  • The court finds the biological parent unfit.
  • The court determines that living with the biological parent is not in the child’s best interests.
  • The court determines that the biological parent is not available due to desertion, death, or other reasons.

For a non-biological parent to be considered for child custody in such a situation, generally, he or she must have shared in a reasonable amount of the child’s life and must be considered “family” by the court as well as by the child. All decisions made in such situations have the same goal—to serve the best interests of the child.

For example, say that a couple gets married and the man has a child from a previous relationship who lives with him full time. The new spouse is the child’s stepmother. If the couple should divorce, the custody would, of course, remain with the biological father. If there is a reason this cannot be done, such as, the biological father, around the time of the divorce, has passed away or disappeared, or gone to prison, for example, the court may feel that is in the child’s best interests to live with the non-biological parent. This is providing, of course, that the biological mother is not available, because she would be next in line before the stepparent if she wished to provide a home for the child.

Approval of Child Custody

Any arrangements where a non-biological parent is legally allowed to visit or have custody of a child must be approved by the biological parent, provided that person is available and suitable to make the decision. Ideally, child custody arrangements can be worked out peacefully and voluntarily in this manner, with both parents agreeing and approving of the set-up. The best interests of the child should, indeed, be at the top of the priority list, and drawn-out court battles or bitter arguments are poor ways to handle such an important decision.

Getting Help 

If you are a non-biological parent hoping to get custody of a child, it is in your best interests to consult with a lawyer. Your attorney can help you to take the proper steps to convince the court that it is in the child’s best interests to remain with you. 

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

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