How Does a Non Parent Get Legal Custody?
Legends Legal Marketing • May 21, 2024
Our state’s and country’s law stiffly protects the right of a parent (a biological or adoptive mother or father) to custody (the authority to make most decisions and accept responsibility, for a minor) of his or her child. It’s likely the most secure right you enjoy as a US citizen. But this right can be overruled.
Just because a person is a parent does not mean that person is behaving as a good parent. Being a parent is a job and performance counts! Good in this context means adequate (based on standards most people generally agree upon)—paying for your child to eat at least twice a day, clothing him, ensuring she has a safe place to sleep, goes to school regularly, and receives at least a little affection and guidance.
Does every person parent adequately? Nope. So, if a person considered a non-parent (anyone other than a biological or adoptive mother or father) sees that a child’s parent is not doing a good job at parenting, what must that non-parent show before a judge involuntarily removes custody of a child from a parent and gives it to a non-parent? Whatever it is, that burden to persuade a judge to do this must be heavy—more than just convenience, a parent’s low income, or a disagreement over parenting styles—because we place such great weight on a parent’s right to rear his own child.
To overcome a parent’s objection to a non-parent’s request for legal custody of a minor child, this non-parent must prove to a judge that–
- this child would be (or has been)
substantially harmed while in the custody of either parent or both, and;
- the non-parent will do a better job of parenting than the actual parents. Okay, what does this legal phrase “significant harm” mean and are there examples of it?
It’s a relative term and depends on specific circumstances but we can agree on some of its basics forms: a parent’s constant degrading verbal abuse, or any physical violence or neglect will do it. More specific examples that could injure a child:
-
A parent’s chronic substance abuse and dependency, which often causes—
a) A parent’s history of poor impulse control (uncontrolled anger, physical and/or sexual abuse);
b) A parent’s history of criminal violations, and;
c) A parent’s history of poor moral choices and/or irresponsibility.
Here are less-obvious examples of substantial harm based on court decisions:
- A Parent’s Lack of Consistently Paying Attention and Financial Support
The Court in In Re. Cole, 265 So.2d 835 granted grandparents custody of children whose mother only visited them five times in three years. - A Parent’s Poor Mental Health
In Dalferes v. Dalferes, 724 So.2d 805, the court found that the mother of a child’s “multiple moods” refusal to answer questions and her hostility were enough evidence of psychological instability. It granted custody to the child’s aunt. - A Parent’s Prolonged Job Instability
In Blaine v. Granger, 616 So.2d 860, the court gave custody to the child’s grandparents when the parents never held a job throughout the entire marriage and were living only on government benefits and charity. - A Parent’s Unsuitable Living Quarters
“Unsuitable Living Quarters” applies not only to a home’s physical state but also the number and quality of people living in the home. The Wilson v. Paul, 997 So.2d 572 Court granted custody to grandparents of a child whose mother lived in multiple homes with men with criminal and abusive backgrounds. - Prolonged Separation
In Doyal v. Doyal, 2023 WL 3490464, the Court granted custody of a child to the child’s uncle whose mother had left the child and moved to New York for over a year, forcing the uncle to step-in to care for the child. - Severe Medical Limitations
In Sanders v. Pepper, 305 So.2d 1362, the child’s medical need made it so he would need “constant attention and meticulous care.” Because his parents could not provide such an involved level of care, the court granted custody to the child’s grandparents. In Miller v. Miller 893 So.2d 233, the father’s seizure disorder played a role in granting custody to the grandparents. - Immigration Hold and Deportation??
This is a potential ground but is sensitive because a court would probably be reluctant to separate a child from a parent with whom the child had a healthy relationship based on an immigration violation alone. If the child did not have a safe or healthy continuing relationship, then an immigration violation could underscore the benefit of awarding custody of the child to a non-parent with whom the child has or could have this safe and healthy relationship.
If you a non-parent, see a child’s parent hurting her child because one of the grounds in this article, apply to the child’s life, seek legal and medical help. Know you may take control of the situation for the child’s sake, at least until the parent becomes stable, and if not, until the child becomes an adult. Many parents find help and improve; others do not. Often, children cannot wait for their parent to improve. Most children need constant positive affirmation, guidance, structure, and protection. If they are not getting it, maybe a non-parent can give these things to them. That gives meaning to the idea it takes a village to raise a child.
Contact us today to see how we can help!
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