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Family Law

How to get custody of a friend’s child

Do you have a special relationship with a child who is not your son or daughter? Does one of your children have a friend who is always at your home sharing meals, spending the night, or otherwise playing with the family? If you answered “yes” to either of these questions, then today’s blog post from the Law Office of Bryan Fagan is for you. We are going to walk you through what it means to step into the life of a child who is not your legal son or daughter. Can you become an adult in a child’s life who can help to make decisions for him or her? What are the steps involved in that process? Stay tuned to find out more.

As with anything else in the law, there is a process involved with being able to become the conservator of a child who is not your biological son or daughter. Conservatorship means that you can make decisions for that child and have the responsibility to care for him or her as best as you can. The best interests of the child standard apply to any conservator – whether you are a parent or not. To make decisions that are in the best interests of a child means that you need to do what is best for that child and not necessarily what is best for you. This is easier to do, in many cases, when you are talking about your own flesh and blood child and more difficult when it is a child with whom you are not blood-related. It takes a special person to fill a void in a child's life like this.

Whether you are a family friend, grandparent, uncle, aunt, cousin or even an adult sibling to a child who needs help the process is similar for all involved. If you are someone who has spent a great deal of time with a child, then you potentially have standing to intercede in that child's life when he or she needs you the most. The Law Office of Bryan Fagan has represented dozens of people just like you who are facing similar circumstances. We have walked with people who have been able to identify a situation where a child is in need and where you, yes you, have what it takes to fill a much-needed role for stability and consistency in the life of a child.

Our point in writing today’s blog post is not to necessarily encourage you to decide whether to take on the massive responsibility of becoming the conservator to a child who is not your legal child already. We don't know anything about your circumstances and would not be able to guide you all that well quite yet. However, what we can say is this- if you have even an inkling that you could be the right person to fulfill this role for a child then you owe it to yourself and the child to learn more. We have found that once a person has a good understanding of what lies in front of them and the challenges that exist it becomes much simpler to decide about whether to move forward.

We as human beings fear what we do not understand. I'm sure you have encountered this in other areas of your life. Whether it is work responsibilities, going on a first date, or anything in between- if you are not sure what to expect then you will naturally fill that knowledge void with anxiety and concern. When you can fill that void with knowledge you have a good starting point to take off and do great things for yourself and possibly for others, as well. The attorneys with the Law Office of Bryan Fagan have hearts like teachers. We do not want to tell you how to run your life or even how to proceed with a legal case. Rather, we will share with you information based on years of experience so that we can help you make decisions that are correct based on your circumstances.

What does it take to win custody of a child?

Whether you are unrelated to the child in question or are a grandparent or aunt/uncle, you need to learn the process involved with trying to become a conservator to this child. When a non-biological mother or father is named as the conservator of a child this is a huge thing. This would allow you to have the right to determine where the child lives, register him or her for school, and make decisions for him in the classroom and at the doctor's office. Essentially, you would have all the conservatorship rights that you have to your minor children. The only difference would be that you are not going to be named as that child's parent.

When a child’s parents step in and state to a court that they are unable to care for that child then you are in a situation where the court may look to you as the best option for that child in terms of raising him or her. We see parents who have addiction issues or have been involved with Child Protective Services realize that they are unable to care for their children. It may also be the case that the parent is unable to care for the child financially due to problems with earning a consistent income. Or the parent may be suffering from a bout of mental health difficulties and is therefore willing to temporarily give up custody of the child to care for their mental health.

Whatever the situation may be which involves your family, know in advance that there is a situation where the child can become your responsibility and it does not take a contentious series of court hearings to do it. In a situation where you believe the child’s parents may willingly come along with your plan to become the child’s conservator then it is crucial to work with those parents and communicate with them throughout the process. The more you do this the better all parties involved can feel about the decisions which are about to be made. These are not bad parents in many cases- just people who are overwhelmed by the responsibility to care for the child in question.

In other situations, you may be looking at a case where the child's parents have been killed, have been severely injured, are incapacitated, or are in jail or prison for an extended period. These are traumatic situations for a child and their family. You can fulfill a role in that child's life- if only temporarily- if you can come forward to care for him or her. You may have already been fulfilling this role for the family informally. Taking the children into your own home, feeding them, getting them to school each day, spending time with them on the weekends. These are the day-to-day activities that children need as far as stability and consistency is concerned.

What you may run into as far as problems are concerned are related to registering the children for school or getting them set up at the doctor’s office. A school or doctor may require that you have conservatorship rights related to the children to be able to make decisions on their behavior when it comes to switching or starting school. For a doctor, setting up an appointment for the child is one thing but being able to consent on behalf of the child to medical care is another matter altogether. For that, simply being a well-meaning friend is not good enough. Rather, you need court orders which confer upon you certain rights and duties concerning the child.

The importance of standing in a conservatorship case

What you need to do, right off the bat, in a conservatorship case like the one you are trying to start is to establish that you have standing to file the lawsuit and appear before the court. Standing is the issue that needs to be established first before you can begin to talk about anything else related to your case. Standing means that you must have a major connection to your child and be heavily interested in him or her. Simply finding a child that you have no relationship with and then immediately filing a lawsuit to win custody and conservatorship rights over him or her probably will not go all that well.

What a court is looking for is that you need to be an adult who has had a significant role in that child's life over a long period. Even if you are a third cousin, just because you know the child somewhat and understand that he needs a role model and care will not make up for the fact that you do not have much of a pre-existing relationship with him. Rather, you need to be someone who has cared for that child consistently. Caring for a child does not mean taking him to lunch once a week or letting him spend the night at your home one weekend per month. Rather, it means showing that you have been a primary conservator of that child in terms of your involvement in his or her life. Even though you have not been named as the child's conservator in a legal sense yet, you would have fulfilled that role in an actual sense.

The sort of language that the Texas Family Code uses is that you need to have cared for, controlled, and possessed the child for at least six months before the conservatorship case is filed for standing to be established. If that child has been in your home, living with you for an extended period then that should be a good start for you to get standing under control. Cooking every meal for the child, being home when he gets home from school, taking the child for medical care as necessary, and to the extent possible based on your circumstances are hallmarks of being a de facto conservator even before you have that title in a legal sense.

What if the child’s parent(s) do not agree with your push for conservatorship?

Here is where a custody or conservatorship case for a non-child becomes tricky. It is not always going to be the case where the child's legal parents agree with your decision to try and become a conservator of the child. Texas supports parents in their role as providers, caregivers, and conservators of their children, first and foremost. This is based on ideas of keeping family units together even in the face of adversity and challenges. The bottom line here is that you will have some hurdles to overcome related to this issue. If a parent pushes back against your attempts to win conservatorship rights for their child, you will almost certainly need the advice of an attorney to assist you.

The burden of proof is heavy for a person in your shoes if you intend to try and show a court that you need to become a conservator of a child. Abuse, drug use, neglect, addiction, and other extreme examples of parental malfeasance are sometimes needed to meet this burden. Past involvement with Child Protective Services is a common track record to show the court that the child’s parents are not up to the challenge of raising a child or at least are not consistent enough in their raising of the child as far as their efforts are concerned.

Terminating the parental rights of a parent

The clearest path towards gaining conservatorship rights over a child who is not your biological son or daughter is to first have the parental rights of the mother and father terminated. In a termination of parental rights case, you can ask the court to sever the legal relationship between a child and their parent for several reasons. In some instances, a parent can voluntarily join in your petition to have their parental rights terminated this means that one or even both parents will agree to hand over their rights related to the child. On the other hand, if yours is an involuntary termination case then there will be a contest between you and the parents to determine whether or not their parental rights should continue to exist.

Keep in my mind that the burden of proof in a parental rights termination case is more onerous than in a typical child custody case. In a parental rights termination case, you must be able to prove by clear and convincing evidence that it is in the best interest of the child to have their biological parents no longer have a legal relationship with him or her. The enhanced burden of proof and a termination case reflects the seriousness of this type of legal matter. If you find yourself on the other side of a case like this and are in a position where you may lose your parental rights, then you should seek legal representation in the form of an experienced family law attorney.

The net result of a parental rights termination case is that if you are successful in having those parental rights terminated then the child of the lawsuit can be adopted. Before your child can be adopted by you at least one of the biological parents must have their parental rights terminated. Once this has been accomplished the child needs to live with you for at least six months before the adoption case is filed. The state of Texas will require that a criminal history report be run, and a home study be conducted before a judge will approve your attempts to adopt the child.

Final thoughts on becoming the conservator of a friend's child

As you can tell, there are many moving pieces associated with a family law case involving a child who is not your biological son or daughter. The law favors stability and consistency in the life of a child, and this means that parents are given the preference when it comes to remaining as conservators of a child. There needs to be dramatic evidence that a parent remaining as a conservator of the child is not in that child's best interests. This is where you need to become very intentional and have a plan in place when it comes to establishing clear and convincing evidence that the parent is inadequate in this regard. Even the most well-organized and well-intentioned person can benefit from having an attorney by their side who has experience in these types of cases.

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