Third Party Custody vs. Guardianship
Third party custody arises in situations where, for the welfare of the child, custody is granted to an individual (or individuals) other than the child's parents. The need for a third party custodian for a child may occur if the child's biological parents lose their parental rights, are deemed unfit to care for the child, or when the parents have given up their parental rights willingly. In these situations, the third party is then granted legal custodial rights over the child in question. It is also not uncommon for biological parents to retain visitation rights or share custody with a third party custodian.
Though similar, third party custody is not the same thing as guardianship. Guardianship is most often used in situations where the child's parents are incapacitated in some way or when they are not able to care for the child on a day-to-day basis and decide to appoint a guardian. For example, in situations where a child's parents must live outside the country, they may elect to establish a legal guardian to care for their child in their absence. It is also common for a child's parents to retain their legal custody rights when a guardian is appointed.
What Rights Does a Third Party Custodian Have?
When a third party is granted custody of a child, their rights resemble those of a biological or natural parent. They are typically given both legal and physical custody of the child. This means that the child will not only live with them, but they will also have the right to make important decisions regarding the upbringing and welfare of the child, including medical and healthcare decisions, religious upbringing, and educational decisions.
Determining Third Party Custody
According to the Code of Virginia § 124.2.B, the court's main priority when making custody determinations is the child's best interests. This statute also states that "the court shall give due regard to the primacy of the parent-child relationship." However, though the courts do everything they can to maintain the child's relationship with their natural parents, "upon a showing by clear and convincing evidence that the best interest of the child would be served," they may award custody or visitation to a third party "with a legitimate interest."
Examples of individuals who can be granted custody in third party custody cases include:
- Aunts and uncles
- Adult siblings
- Other relatives
- Close friends
An individual does not have to be a relative to be granted custody. When determining whether to award custody to a third party, the courts will consider both the relationship the third party has with the child and whether they have a legitimate interest in the child's welfare.
Third Party Custody Disputes
A third party with a legitimate interest may petition the courts for custody or visitation of a child. However, because the courts generally privilege the child's relationship with their biological parents, this can be an uphill battle, especially if the parents do not agree that the third party should have custody rights. If you seek custody of a child that is not your biological child, you will have to prove to the courts that it is in the child's best interest that you are granted custody or visitation.
Common reasons someone may seek third party custody:
- The child's biological parents are not capable of caring for the child
- The child is the victim of abuse or domestic violence
- The third party has a strong relationship with the child, and it would be in the child's best interest to maintain that relationship (such as when a former stepparent seeks visitation after divorcing the child's parent)
- The child's parents unfairly deny the child visitation with a close relative (such as a grandparent), the result of which causes harm to the child
Going through a custody dispute can be emotionally difficult, and the process is a complicated one. In addition to legal precedence, when making third party custody determinations, the courts focus heavily on the immediate facts of the case and the child's needs. Therefore, it is recommended that you work with an attorney familiar with handling third party custody cases, like ours at Malinowski Hubbard, PLLC.
Our attorneys have extensive experience helping parents and interested parties ensure that the best interests of their children are protected, and we are prepared to help you with your case. Contact our law firm to schedule a consultation.