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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 a period of time you may be wondering what legal rights, you have to that child. These people can either be grandparents, aunts, or uncles, or even just a trustworthy family friend.

There is a misbelief that you may not be able to obtain custody of a child, but this is not true in certain circumstances and here at the Law Office of Bryan Fagan we have experienced attorneys that can explain to you 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 make life decisions for the child now.

There are many certain instances where a third-party custodian may be ordered which may include when the biological parents of the child 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 greatly considered in emergency situations like when both parents have died, are incapacitated, or 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 illnesses versus being incarcerated where the parents are both imprisoned.

What is “Standing?” and Do I Have It?

To begin a 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 custody 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 a significant involvement with a child like the being the primary custodian for several years you will obviously have standing.  

In Texas specifically, you would need to have cared, controlled, and possessed the child for at least 6 months to have standing. This can mean having the child live with you, supporting the child’s physical or psychological needs, or show 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 grown up with their biological parents.

If you are looking to take completely custody of a child over the child’s biological parents, you will need to prove that ordering a third-party custody would be in the best interest of the child. Some ways this can be proven is if there is evidence of any abuse, neglect, or drug usage by the parents. In Texas, we use the standard of what is in the “Best Interest of the Child” before making decisions regarding custody or support.

Filing for Custody

To begin, regardless of the situation if you are seeking custody of a child as a third-party you will need to have 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 superior right to them come in and request their return.

Termination of Parental Rights/ Adoption

If you are wishing to be awarded custody of a child as a third-party without having the biological parents have any rights to the child, you will first need to have the rights of the biological 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, whereas in an involuntary termination the parents will have to have their rights terminated via a court order. In an involuntary termination the biological parents retaining custody would not be in the best interest of the child, and 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 parents’ rights have been terminated, the child is now eligible for adoption. To be clear both parents do not actually 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 needed to live with the parent for at least six months before filing for an adoption. The adoptive parents will also need to have a criminal history report be done and home study before a court approves the adoption.

Furthermore, your adoption proceeding may even include the need for the child to have their own legal representation by an Attorney Ad Litem, which is 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 best interest of the child.

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 very vital to a child’s upbringing and many have involved roles in raising a child. The bond between a grandparent and grandchild is so strong. Unfortunately, grandparents do not have rights over their grandchildren unless they have been court-ordered.

However, you may have standing to bring your own lawsuit for things like visitation, custody, or both. You would have to prove that you are the biological grandparent, and 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 attorney’s here to help you figure out if more is required of you.

Intervention

If you are a grandparent to a child who is subject to an ongoing child custody lawsuit in Texas, you can file an intervention, or intervene, in the existing lawsuit if you are seeking custody of your grandchild. What this means is 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 in possessory conservatorship you will not have any rights or duties to make life decisions for your grandchild. 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 life 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 includes one more additional element then what have been aforementioned and this includes proving that you have cared for your grandchild in your own home for 6 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 their parent have lived with you for 6 months and has 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 who are specialized in family law waiting to assist you and give you the answer you seek regarding custody of a child you have cared for.

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