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Can a Non-Family Member Get Custody of a Child?

If you are a person other than a biological parent or adoptive parent who has cared for a child for some time, you may be wondering what legal rights you have to that child. These people can either be grandparents, aunts, uncles, or even just trustworthy family friends.

There is a misbelief that you may not obtain custody of a child, but this is not true in certain circumstances. Here at the Law Office of Bryan Fagan, we have experienced attorneys that can explain your chances of obtaining custody as a third party.

Third-Party Custody

Mentioned above is what is known as "Third-Party Custody," where a non-biological parent is awarded custody of a child. What custody means is that the custodial parent will now have the right to directly make life decisions for the child.

There are many instances where a third-party custodian may be ordered, including when the child's biological parents do not wish to retain custody themselves or when they cannot properly care for the child or have been presumed unfit to care for the child.

However, most third-party custody cases are extensively considered in emergencies, like when both parents have died, are incapacitated, or are incarcerated. A parent is incapacitated or unfit to care for a child when they cannot normally function due to a mental illness or abuse of controlled substances or other hindering conditions versus being incarcerated where the parents are both imprisoned.

What is "Standing?" and Do I Have It?

To begin legal action for custody, a person much have what is referred to as "Legal Standing." In short, what this means is that the third party seeking to obtain possession of a child must show that they have a valued interest or connection in the custody matter.

If you are a distant relative of the child with little connection or involvement in the child's life, you will likely not have "standing" to seek custody. However, if you have had significant involvement with a child-like primary custodian for several years, you will be standing.

In Texas specifically, you would need to have cared for, controlled, and possessed the child for at least six months to have standing. This can mean having the child live with you, supporting the child's physical or psychological needs, or showing guidance, governance, and direction similar.

Parental Preference Rule

In Texas, public policy supports the notion of family wholeness, and we pride ourselves on putting our family values first. In summary, courts will prefer to have a child in the custody of a biological parent over a third party because they believe it is in the "best interest" for a child to grow up with their birth parents.

If you are looking to take custody of a child over the child's biological parents ultimately, you will need to prove that ordering a third-party control would be in the child's best interest. This can be confirmed if there is evidence of any parents' abuse, neglect, or drug usage. In Texas, we use the standard of the "Best Interest of the Child" before making decisions regarding custody or support.

Filing for Custody

To begin, regardless of the situation, if you seek custody of a child as a third party, you will need legal intervention. This means to have a legally recognized relationship between you and the child; you will need to go through the Texas family law courts.

Without such, a person may be taking care of a child for a period only to have the biological parents who have the unique right to them come in and request their return.

Termination of Parental Rights/ Adoption

Suppose you wish to be awarded custody of a child as a third party without having the biological parents have any rights to the child. In that case, you will first need to have the rights of the birth parents terminated. This is what is known as a termination of parental rights.

Termination of parental rights can be either voluntary or involuntary. In a voluntary termination, both or one of the parents will agree to give up their rights to the child. In contrast, the parents will have to have their rights terminated via a court order in an involuntary termination. The biological parent's custody would not be in the child's best interest in an automatic stop. It must be proven by clear and convincing evidence rather than a preponderance of the evidence, which is a higher standard of proof. This is because losing your child is the equivalent of getting the death penalty.

Now that the biological parent's rights have been terminated, the child is now eligible for adoption. To be clear, both parents do not have to have their rights relinquished, but at least one parent's rights must be terminated before a child can be adopted. Even after this has been done, the child will have to live with the parent for at least six months before filing for adoption. The adoptive parents will also need to have a criminal history report, and a home study before a court approves the adoption.

Furthermore, your adoption proceeding may even include the need for the child to have their legal representation by an Attorney Ad Litem, an attorney specifically for the child and represents their best interests. This Ad Litem will let the court know if they believe the adoption is in the child's best interest.

Termination and adoption proceedings, in a sense, go hand in hand; you cannot adopt a child whose biological parent has a superior right to them.

Grandparent's Rights

In Texas, there is a thing known as grandparent's rights. When you think about it, grandparents are vital to a child's upbringing, and many have involved roles in raising a child. The bond between a grandparent and a grandchild is so strong. Unfortunately, grandparents do not have rights over their grandchildren unless they have been court-ordered.

However, you may have the standing to bring your lawsuit for things like visitation, custody, or both. You would have to prove that you are the biological grandparent, one parent still has parental rights, and your grandchild will suffer physical or emotional harm without your presence in their life.

Depending on the circumstances, you may have more requirements, but we have dedicated attorneys here to help you figure out if more is required of you.


Suppose you are a grandparent to a child subject to an ongoing child custody lawsuit in Texas. In that case, you can file an intervention, or intervene, in the existing lawsuit if you are seeking custody of your grandchild. This means that as a grandparent, you have an interest in the outcome of the child custody case.

As mentioned before, Texas prefers the children to remain with their biological parents, so you will have to prove more than just your want of custody. For example, you can show that your grandchild has been abused or neglected, etc.

What this will require is a petition to be appointed as a conservator or guardian. You will have to show again that you are a biological grandparent, one parent still retains parental rights, and absences of access will physically or emotionally impair the child.

Possessory Conservatorship vs. Managing Conservatorship

There are two types of conservatorship you may be awarded regarding your grandchild: possessory or managing conservatorship. The main difference between the two is that you will not have any rights or duties to make life decisions for your grandchild in possessory conservatorship. However, you will have visitation rights.

In a managing conservatorship, you will now have the rights and duties to make life decisions regarding your grandchild. Your grandchild will also live with you, and you may also be entitled to child support from the parents. The requirements for being awarded a managing conservatorship of your grandchild include one more additional element than what has been aforementioned, and this includes proving that you have cared for your grandchild in your own home for six months or more and that this arrangement was disrupted 90 days before filing this petition for intervention. You may also still file if your grandchild and parent have lived with you for six months and have been within the previous 90 days. Lastly, it must be decided by the judge that awarding conservatorship is in the best interest of the child.

Although this information is very dense to take in, if you have any remaining questions about your unique set of circumstances regarding third-party custody rights, do not wait to contact our law office to set up a FREE 30-minute consultation. We have expert attorneys specializing in family law, waiting to assist you and give you the answer you seek regarding custody of a child you have cared for.

Questions about child custody? Contact the Law Office of Bryan Fagan

The subject of child custody is both complicated and vital. With so much riding on what happens in your family law case, you are best served by having the counsel of an attorney who has worked with clients in situations just like yours. The attorneys with the Law Office of Bryan Fagan offer that sort of experienced, high-quality representation for family law matters.

If you are interested, please contact our office today to schedule you for a free-of-charge consultation. These consultations are helpful because they allow you to ask questions and receive direct feedback about your particular circumstances.

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undefinedIf you want to know more about what you can do, CLICK the button below to get your FREE E-book: "Child Custody E-Book."

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Law Office of Bryan Fagan, PLLC | Houston, Texas Child Custody Lawyers

The Law Office of Bryan Fagan, PLLC, routinely handles matters that affect children and families. If you have questions regarding child custody, it's essential to speak with one of our Houston, TX, child custody lawyers right away to protect your rights.

Our child custody lawyers in Houston, TX, are skilled at listening to your goals during this trying process and developing a strategy to meet those goals. Contact the Law Office of Bryan Fagan, PLLC by calling (281) 810-9760 or submit your contact information in our online form. The Law Office of Bryan Fagan, PLLC, handles child custody cases in Houston, Texas, Cypress, Klein, Humble, Kingwood, Tomball, The Woodlands, Houston, the FM 1960 area, or surrounding areas, including Harris County, Montgomery County, Liberty County, Chambers County, Galveston County, Brazoria County, Fort Bend County, and Waller County.


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