What is a Non-Parental Custody?
Where it would be in the child's best interests, the court may grant non-parental custody to a non-parent or a person other than a parent. An action for non-parental or third party child custody can only be brought when neither of the child's parents has physical custody of the child, or when the third party shows that the child's parents are unfit. There are two kinds of child custody: legal custody and physical custody. Physical custody designates where the child will live, while legal custody gives the custodial person the right to make decisions for the child's welfare.
An action for non-parental custody is a lawsuit where a person who is not the parent (the nonparent) requests legal custody of the child (or children) named in the lawsuit. The person who files the case is called the petitioner. The petitioner files the petition and related documents in the superior court of the county where the child lives or is found, and then he or she will have the papers served on the parents and anyone claiming a right to custody or guardianship of the child. The petition shall include as respondents (persons who have the right to respond to the petition) the parents, whether they have been involved in the child’s life or not, any other legal guardians or custodians, and people with court ordered visitation.
A non-parental custody action can be resolved by the court in one of four ways:
1. Dismissal or denial of the petition, which means the nonparent does not get an order granting custody, or
2. Default, which happens when one or more of the respondents do not respond, and the court grants the petition of the nonparent against the defaulting respondent(s), or
3. Agreed order, where one or more of the respondents agree to the petition or to some negotiated order, and the court signs an agreed court order between the nonparent and the agreeing respondent(s), or
4. Court decision, when a respondent(s) files a response that disagrees with the petition, the court usually will decide after a trial who gets permanent child custody.
Non-parental custody actions, if successful in favor of the petitioner, should lead to permanent legal custody being awarded to the non-parent through a final custody order called a Non-parental Custody Decree. The non-parent who has been awarded custody has the right to have the child live with him or her and can make educational, medical, and other major decisions about the child.
In case a parent objects to the petition, the court will award legal custody to the non-parent only if it can be proven that the parents are unfit or that the child’s growth and development would be detrimentally affected by living with an otherwise fit parent. The court may also deny the petition if it decides there are problems in the non-parent’s own background or the background of any adult in his or her own household (i.e., drug addiction, alcoholism), or if the court decides it is not in the child’s best interest to live with the petitioner.
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