How to Get Non-Parent Custody of a Child

You generally need permission from the biological parents to get custody of a child as a non-parent. If one or both parents will not give their consent, you can file a petition for custody. Be aware that courts take the parental rights of biological parents very seriously. Read our guide to learn how to get non-parent custody of a child and visitation rights.

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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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UPDATED: Jul 16, 2021

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Non-parent legal custody is granted only under certain circumstances and through specific procedures. While the rules vary by state, generally you must follow specific court procedures and provide clear proof that the child will be harmed if non-parent custody is not granted. In some cases, parents may surrender minor children to a grandparent, cousin, or other adult relative temporarily. Whether voluntary or involuntary, these cases generally go through family court. If there is abuse or other serious problems in the home, some courts will work with extended family first. 

Depending on where you live, there are two primary ways to file for custody of a child that is biologically not your own: 1) guardianship, and 2) non-parent custody.

How Can You Apply for Guardianship in Lieu of Non-Parent Custody?

The first method for getting non-parent physical custody of a child involves applying for guardianship.

With “consent guardianship,” parents give written consent to non-parents to be a temporary legal guardian. This is the easiest way to get custody of a child that isn’t yours. In these cases, biological parents withhold the right to revoke consent and can take custody back.

Both parents must agree to give custody to the non-parents. Consent guardianship is not possible if one parent does not agree. If mutual consent cannot or is not granted, non-parents can file for non-parent custody.

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How Do Non-Parent Custody Petitions Work?

The second method for getting custody is called non-parent custody, which is also called “in loco parentis” custody. “In loco parentis” means “in place of the parents” or “instead of the parents.” In this case, non-parents file with the court where the child currently or permanently resides.

The non-parental filing will need to detail the cause for the petition. It involves a formal notification to the child’s parents (if living), guardians, and various other interested parties.

To gain non-parent custody, the non-parent(s) must generally be able to show the following:

  1. That they have a long-standing relationship with the child, and are fully capable of substituting for the parents in caring for the child
  2. That it is not only not in the child’s best interests but also to his detriment to be left with parents who wish to retain physical custody
  3. That the court with jurisdiction in the matter has not made a custody determination within one year of the filing, with the exception of cases when the child’s physical, emotional, moral, or mental health is in jeopardy
  4. That one of the following criteria applies: a) One of the child’s legal parents is deceased; or b) the child’s parents are not married at the time of the filing, or c) the child’s parents are legally separated or are divorcing at the time of the filing.

Courts hold the basic rights of biological parents sacred. The non-parents filing for custody must convincingly prove that it is in the child’s best interests to be removed from the care of their biological parents. They must also prove they can provide an appropriate child custody arrangement. These stringent rules apply not only to custody battles, but also to non-parental visitation rights. This is true whether the filing part is a grandparent, sibling of the biological parents, or someone else. 

Keep in mind, a non-parent cannot file for custody simply because they disapprove of the way the biological parents do things. A minor child can only be removed from their home with cause. For example, a non-parent would not likely be able to assume custody just because the parent was under eighteen. If the legal parent were using illegal drugs and neglecting the child’s basic needs, the non-parent would have a much stronger case.

Can A Non-Parent Get Visitation Rights?

This is also tricky. If you’re estranged from a family member, you may not have the right to see their children. This is true whether you’re talking about visiting them at home or school or being there when they’re in the hospital. If medical care is involved, HIPAA also comes into play. Reasonable parenting plans can exclude other family members for many reasons, most of which don’t involve the courts. It can vary state to state.

To better understand the rules here, consider the case of Troxel v. Granville, where the U.S. Supreme court made a determination regarding the visitation rights of grandparents.

In the case, an unmarried couple had two daughters. When the parents’ relationship fell apart, Troxel continued to take his daughters to visit his parents. Later, Brad Troxel committed suicide, but his parents wanted to continue to visit with the girls. Tommie Granville married, and her new husband adopted the girls. Tommie tried to limit the Troxels’ visitation rights. The Troxels subsequently filed suit under the Washington State Statute that allowed non-parental third parties to file suit to compel visitation.

The case moved through the lower courts all the way to the U.S. Supreme Court. SCOTUS found that the Washington State law should have required that those filing for visitation prove that there was some harm to the children. While the court had six different opinions issued with its decision, the case was considered widely as a blow to the rights of non-parents applying for visitation rights of children.

As a general matter, Troxel v. Granville meant that “intact” families consisting of married parents and children had the right to make decisions regarding visitation rights of grandparents and other non-parents. To be granted rights in custody disputes, clear and convincing evidence must be presented by the non-parent proving harm to children if visitation is not allowed. A family law attorney in any state should take heed of cases like Troxel v. Granville. The burden lies squarely with those filing the petition to prove the detriment to the child if visitation is denied.

Unless you have solid proof, in the form of witness statements and other evidence, you are very unlikely to be given custody of a non-biological child. However, if you have been raising the child and are acting as a substitute parent or you have some other reason why it would be detrimental to the child if you weren’t to be granted non-parent custody, a family law attorney can review your case.

Should You Fight for Non-Parent Custodial or Visitation Rights?

Taking parents to court over child custody or visitation as a non-parent is tricky. Chances are your relationship is already strained, and court cases can make the situation even worse. Cases between a custodial parent and non-custodial parent can be brutal, but both sides ultimately have identical or similar rights. A third party does not.

If you don’t have a significant concern about the safety of the child(ren) involved, the legal process is not the right platform. As an alternative, there are mediation professionals who can facilitate a conversation if all parties are willing to cooperate.

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