Third-Party Custody, Parental Liberty, and Children’s Interests

While “custody” and “visitation” are outmoded terms in the interparental context, they are still widely used in disputes between parents and third parties. Here, a claim for “custody” denotes a request for extended physical custody along with decision-making responsibility for the child’s day-to-day care. In contrast, “visitation” denotes periodic short-term contact with a child.

Concededly, the line between custody and visitation can be blurred, but a claim by a nonparent for long-term physical custody and decision-making authority represents a deeper intrusion on parental autonomy and liberty than periodic visitation. As one court put it, “third party custody petitions challenge the liberty interest of a parent in a way that is fundamentally different from visitation petitions.” Fish v. Fish, 939 A.2d 1040, 1059 (Conn. 2008). Accordingly, a nonparent seeking custody generally must meet a heightened burden of proof and make more demanding substantive showings than needed for visitation. The challenge for courts is to give due deference to the presumptive right of parents to determine their children’s upbringing while also protecting children from harm.

Setting the Stage

All children can form significant bonds with others who are not legal parents, but that likelihood increases for children who live with one parent and, perhaps, a stepparent, cohabitant, grandparent, or other extended family member. Demographics indicate that many children in the United States live with nonparents during all or part of their childhood. While about 70% of children live with both parents, the remainder experience a range of living situations, including residing with a single parent, a relative, or an unrelated person. Almost 40% of births today in the United States are to unmarried mothers, with significant variations by race and ethnicity, and roughly one in four solo parents are living with their own parent. In addition, as a result of the opioid epidemic and other socioeconomic stressors, a growing number of children live with grandparents or other family members. See generally U.S. Census Bureau, Historical Living Arrangements of Children (Nov. 2019).

At common law, third parties had no right to maintain contact with children over a parent’s objection and no standing to seek such access in court. Nevertheless, even absent statutory authorization, state courts exercised equitable powers to award custody to a nonparent, particularly when the nonparent had been caring for the child and the family had experienced a traumatic disruption, such as the death of a parent. The courts in those cases relied on their core duty to protect the welfare of the child and acknowledged that overriding the presumption of parental custody was justified only in exceptional circumstances. See, e.g., Clifford v. Woodford, 320 P.2d 452 (Ariz. 1957) (in father’s habeas corpus action following mother’s death, holding that stepfather should retain custody of children whom he had helped raise since infancy). Inevitably, courts sometimes awarded custody to third parties based on subjective and misguided assumptions about the parent’s lifestyle and the child’s best interests. In the infamous case of Painter v. Bannister, 140 N.W.2d 152 (Iowa 1966), for instance, grandparents retained custody of a young boy following his mother’s death based in part on the “Bohemian” and “artsy” lifestyle of the father and the perceived benefit to the child of a more conventional home.

The Uniform Marriage and Divorce Act of 1973 took a guarded approach to nonparent custody, permitting custody actions by nonparents only if the child was not in the physical custody of a parent at the time the petition was filed, a prerequisite that appears alongside other bases in many statutes today. Uniform Marriage and Divorce Act § 401. The UMDA did not include a provision for visitation petitions by a nonparent, but widespread legislative changes expanded third-party standing for visitation in the last decades of the twentieth century. By the time of Troxel, all 50 states had enacted some form of grandparent visitation scheme, a response to the growing number of children being raised by single parents.

As family law attorneys will recall, Troxel involved a quest by grandparents following their son’s death to acquire greater visitation with their grandchildren than the children’s mother desired. Although the grandparents prevailed in the Washington state trial court, their victory was short-lived. They lost in the state supreme court and again in the U.S. Supreme Court. Troxel reaffirmed that fit parents have a fundamental liberty interest in the custody and control of their children. Under Justice O’Connor’s plurality opinion, state courts must presume that a fit parent acts in the child’s best interests, must accord the parent’s decisions special weight, and must impose a high (but undefined) burden on a nonparent to overcome the presumption with strong factual showings. Troxel, however, left the lower courts with an incomplete constitutional framework, including whether a showing of harm is always necessary to override parental authority. Today, twenty years later, courts still struggle to determine when a nonparent has presented sufficiently compelling evidence to overcome a parent’s constitutionally grounded authority.

Current Standards for Nonparent Custody

Disputes between parents and nonparents over custody can arise in a range of contexts, but they often occur after a nonparent has been exercising physical custody of a child for a period of time, sometimes with a parent’s active encouragement and sometimes as a result of a parent’s incapacity, absence, or death. Frequent fact patterns in the case law include stepparents or cohabitants who have shared childrearing responsibilities with legal parents. In other common scenarios, grandparents or other family members have stepped forward to care for a child when the parent is unable to do so.

Standing

Unlike a contest between two parents, when a third party seeks custody of a child, the constitutional presumption favoring parental custody takes center stage. As an initial matter, a nonparent seeking custody must establish standing in order to proceed in court, and the basis for standing must be evident on the face of the pleadings. Few states adhere to the strict model of the UMDA, but many include a parent’s lack of physical custody of the child as one of several grounds for standing. In Washington, nonparent standing requires either that the child not be in the physical custody of a parent or a showing that neither parent is a suitable custodian. Wash. Rev. Code Ann. § 26.10.030.

A growing number of states recognize standing for de facto or functional parents, often without express statutory authorization. See, e.g., Conover v. Conover, 146 A.3d 433 (Md. 2016) (holding that de facto parenthood provided standing for former same-sex partner who helped raise children). For a closer look at the de facto parent doctrine, see Douglas NeJaime, “Who Is a Parent?,” in this issue of Family Advocate. Separate from de facto parent status, a nonparent who has cared for a child for a defined statutory period may also have standing. In Colorado, for example, a nonparent has standing to petition for custody if the child is not in the care of a parent or if the petitioner has exercised physical care for a prescribed period. Col. Stat. Ann. § 14-10-123. Similarly, under Texas law, a nonparent must have exercised “actual care, control, and possession” of the child for at least six months to have standing to seek custody. Tex. Fam. Code § 102.03(a)(9). In In re H.S., the Texas Supreme Court distinguished Troxel and applied Texas law to recognize the standing of grandparents to seek custody where they had exercised physical custody for longer than the statutory minimum. 550 S.W.3d 151 (Tex. 2018). In addition, states frequently impose other standing requirements on functional parents when seeking custody—requirements that may have little bearing on the third party’s relationship with the child. In Arizona, for example, not only must a third party seeking custody be in loco parentis to the child, but standing is limited to situations of parental death, divorce, or birth outside of marriage. Ariz. Rev. Stat. Ann. § 25-409.

Grandparents and stepparents continue to occupy a special status in many statutory frameworks. Almost all states have some form of grandparent visitation statute, and about a third have stepparent visitation laws, typically triggered by the parents’ divorce or a parent’s death. See Family Law in the Fifty States, D.C., and Puerto Rico, 52 Fam. L.Q. 581, 616 (2019) (Third-Party Visitation). Standing for custody, on the other hand, generally requires a showing that the grandparent or stepparent has established a parent-like relationship with the child. In Idaho, for example, grandparents with whom the child has lived and de facto parents, statutorily defined, have standing to seek custody. Idaho Code §§ 32-717(3), 32-1703(1). Similarly, to establish standing in Pennsylvania, grandparents must show that the child is dependent, is the victim of abuse or neglect, or has resided with the grandparent for a statutorily defined period. See 23 Pa. Stat. and Cons. Stat. Ann. § 5324. In Oregon, a grandparent or stepparent must show, among other criteria, that “a child-parent relationship exists.” Ore. Rev. Stat. § 109.119. Likewise, in Delaware, a stepparent with whom the child has resided can seek custody on the death or disability of the custodial parent, even as against a surviving parent. Del. Code Ann. tit. 13, § 733.

Substantive Showing and Burden of Proof

While state courts disagree about the showing that is constitutionally required to grant visitation to a nonparent, a broad consensus exists that a nonparent seeking custody must establish parental unfitness or that the child will suffer significant physical or emotional harm in the care of the parent. Because litigation itself intrudes on parental liberty, nonparents may be required to make a prima facie showing in their pleadings either that the parents are unfit or that exceptional circumstances exist. See, e.g., Burak v. Burak, 168 A.3d 883, 943 (Md. 2017).

The fact that a child might experience social or economic disadvantages in parental care or the ordinary emotional discomfort that comes from a change in home does not overcome the parental presumption. Instead, case law and statutory frameworks typically require a showing of parental conduct amounting to abandonment or forfeiture of parental rights or other extraordinary circumstance posing a risk of serious physical, emotional, or psychological harm to the child. See, e.g., Howlett v. Stellingwerf, 908 N.W.2d 775 (S.D. 2018) (remanding custody dispute between biological father and custodial grandmother in order for trial court to apply heightened standards protective of father’s parental rights). Common bases for granting a nonparent’s petition for custody include parental mental illness or drug addiction, parental neglect, or a prolonged and unjustified absence by a parent during a child’s early years.

In light of the significant constitutional interests at stake, most states require nonparents to prove their claim for custody by clear and convincing evidence, either by court decision or by statute. See, e.g., Dara v. Gish, 404 P.3d 154 (Alaska 2017) (third party seeking custody must show by clear and convincing evidence that parent is unfit or that child will suffer clear detriment if placed in custody of parent); Cal. Fam. Code § 3041 (nonparent must show by clear and convincing evidence that grant of custody to parent will result in detriment to child). Indeed, in deciding that a heightened burden of proof is required, some courts have equated a grant of third-party custody with a termination of parental rights. See, e.g., Veldheer v. Peterson, 824 N.W.2d 86, 94 (S.D. 2012) (denying grandparents’ custody claim where grandparents “failed to provide clear and convincing evidence that Father forfeited, surrendered or abdicated his parental rights and responsibilities”).

As a practical matter, where the evidence favors the nonparent but is close, the heightened burden of proof protects the parent’s constitutional priority. Consider Dunn v. Covington, 846 S.E.2d 557 (N.C. App. 2020), where the court of appeals reversed the trial court’s permanent award of custody of a six-year-old girl to her paternal grandparents. Over a period of several years, the mother had experienced marked instability and had permitted the grandparents to care for her daughter. That instability included an erratic employment history, frequent moves, bouts of drug addiction, and a felony firearms conviction. The mother, however, had successfully completed a rehabilitation program, had been sober for several months by the time of trial, and had tried to see her daughter to the extent permitted. Under North Carolina law, a nonparent seeking custody must show by clear and convincing evidence either that a parent is unfit or that the parent has acted inconsistent with her protected constitutional status. The court of appeals held that the trial court had moved too quickly to a best-interests analysis and had failed to make the necessary prior findings by clear and convincing evidence. In particular, the court faulted the trial judge for short-changing the mother’s constitutionally protected parental preference and for relying on socioeconomic factors to draw negative conclusions about the mother’s fitness.

Reflecting trends in the law, both the proposed Restatement of Children and the Law and the Uniform Nonparent Custody and Visitation Act require that a third party seeking contact over parental objection have a significant pre-existing relationship with the child, both frameworks require the third party to demonstrate that denial of the requested contact will cause serious harm to the child, and both impose a clear and convincing evidence burden of proof on the petitioning nonparent. Significantly, both also recognize that an individual who has been in a parent-like role with the child—“consistent caretaker” under the UNCVA or “de facto parent” under the Restatement—occupies a special status as compared to other third parties with a lighter evidentiary burden. See Uniform Nonparent Custody and Visitation Act (2018); Restatement of Children and the Law §§ 1.70–72 (Am. Law Inst., Tentative Draft No. 2, 2019).

Issues You Might Not Expect

As with any family law case, certain issues may take lawyers by surprise in third-party custody litigation. One question is the appropriate standard for modification petitions. If a nonparent is exercising judicially awarded custody and a parent later seeks to regain custody, state law may be unclear as to whether the constitutional presumption favoring parental custody still applies. Some cases reason that once rebutted, the presumption no longer applies and the burden is on the parent to show a material change in circumstance. See, e.g., In re Marriage of Epler, 341 P.3d 742 (Or. 2014) (refusing to apply parental presumption where child had been in sole care of grandmother for seven years pursuant to stipulated decree). In other cases, courts have reasoned that if the circumstances giving rise to nonparent custody no longer exist, the parental preference should apply.

Reviving the parental presumption may make particular sense where a parent has temporarily lost custody due to substance abuse or other temporary incapacity and, after successfully completing a rehabilitation program, seeks to regain custody. See, e.g., In re Zakai F., 2020 WL 4218112 (Conn. July 22, 2020) (after stabilizing her life in various respects, mother was entitled to parental presumption in proceeding to regain custody of child from guardian). Thus, the question whether the parental presumption applies in modification proceedings will turn on the reasons for the original grant of custody to the nonparent, the basis for the parent’s quest to regain custody, and the backdrop of statutory law and case law in the particular state.

Another issue is the potential unavailability of a joint or shared custody award between the parent and the nonparent. Third-party custody statutes often require the petitioner to establish that placing the child in the custody of a parent will cause significant harm to the child. If a third-party dispute is governed by such a framework, joint or shared custody may be off the table as an option. In Thomas v. Thomas, 49 P.3d 306 (Ariz. Ct. App. 2002), for example, the same-sex partner of a child’s adoptive mother sought shared custody. Relying on the statutory language, the appellate court reversed the trial court’s award of joint custody, holding that the law required an either-or decision as between the mother and the petitioner. Thus, a claim for shared custody between a nonparent and a parent—while sometimes the very best option from a child’s perspective—may not be available under a state’s particular statutory framework.

Finally, third-party disputes may trigger application of the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901–1963. If the child at the center of a custody dispute is an Indian child, as defined by ICWA, an award of custody to a nonparent may trigger the heightened burdens of proof, notice requirements, and placement preferences, among other statutory directives. In In re Mahaney, 51 P.3d 776 (Wash. 2002), for example, a non-Indian grandmother petitioned for custody of her Native Alaskan grandchildren. As the dispute with the Native Alaskan mother unfolded, the question of ICWA’s applicability arose. The state high court held that the proceeding was governed by ICWA, thus requiring the grandmother to meet the strict standards of the federal Act in addition to the mandates of state law. The lesson for lawyers in third-party custody litigation is to investigate thoroughly if there is a reasonable possibility that a child has American Indian heritage.

The Law in Action

Recent case law reveals the practical force of the constitutional presumption favoring parental custody, even where children’s emotional attachments and their interests in stability might seem to support the grant of sole or shared custody to the third party. In State ex rel. Waters v. Bentley, 938 N.W.2d 357 (Neb. App. 2020), the court faced the question whether a prolonged parental absence was a forfeiture of parental rights. In that case, a six-year-old girl had been cared for by her maternal grandmother since the age of three, with the mother’s consent. The father had not known about the child’s birth and had not pursued a relationship with the child until a paternity proceeding was brought against him. By the time the father sought parenting time, the girl was six years old. Holding that the parental preference did not apply, the trial court concluded that the girl’s best interests would be served by remaining in her grandmother’s stable care.

The court of appeals found that the father had not lost his constitutionally protected status by his six-year absence. The court noted that the father had pursued a parental relationship with the child once he was notified that he might be her father. In the appellate court’s view, the record did not show the father to be unfit or that he forfeited his parental rights. The court emphasized the absence of “clear and convincing evidence of substantial, continuous, and repeated neglect of [the child] necessary to overcome [the father’s] parental superior right.” Id. at 371. Relying on the heightened evidentiary standards, appellate courts seem to reverse grants of third-party custody with remarkable frequency. Indeed, in Jewell v. McGinnis, 816 S.E.2d 683 (Ga. App. 2019), the court of appeals reversed a trial court’s repeated orders for grandparent custody on three successive appeals.

On the other hand, third parties may prevail where they have been long-term custodians and the evidence against the parents is compelling. In Braddock v. Lindsey, 845 S.E.2d 731 (Ga. App. 2020), for example, an award of a young girl’s custody to her grandparents was upheld where the grandparents had cared for her since infancy and the evidence showed that the girl suffered repeated physical injuries and intense psychological anxiety when in the care of her father. Rejecting the father’s argument that his rights as a fit parent should be dispositive, the court noted that a finding of parental unfitness was not required where there was “clear and convincing evidence that awarding custody to the parent would cause either physical harm or significant, long-term emotional harm to the child.” Id.

Conclusion

In grappling with third-party custody disputes post-Troxel, courts have made clear that fit parents enjoy a robust constitutional presumption, even where the parents’ conduct has been far from ideal. Nonparents, in turn, must meet strict standing requirements, demanding substantive standards, and a heightened burden of proof. While trial judges often appear sympathetic to the arguments of nonparents, appellate courts seem to function as a bulwark against the erosion of parents’ constitutional liberty.