Filing for Non-Parental Custody

When a child’s biological or adoptive parents are unfit to provide care and/or the child does not currently live with his or her legal parents, another adult can take legal responsibility for the child’s care by submitting a non-parent custody petition. The court will review this petition to determine whether the child’s parents are unfit and/or whether the child’s growth and development would be harmed by placement with his or her legal parents. Although the specific procedures vary by jurisdiction, most states have a form that can be completed by the person seeking non-parental custody. This must be done in the superior court system where the child currently resides.

The petition must include an affidavit declaring that the child’s legal parents are not fit to provide care and/or that the child is not currently in the custody of the legal parents. Adequate cause supporting these statements must be provided or the court will deny the motion. If sufficient evidence is provided, the court will set a hearing date at which the legal parents can provide evidence refuting the affidavit if they choose to do so.

The Role of Adequate Cause

When granting custody to a non-parent, the court requires a higher standard than in parental custody cases, where the standard is the child’s best interest. The petitioning party must show that the parents are unfit and/or that placing the child with otherwise fit parents would cause undue harm to his or her growth and development. The adequate cause standard prevents frivolous motions filed to harass legal parents.

If the child’s legal parents contest the petition, the court may appoint a guardian ad litem to advocate on the child’s behalf. An investigation may be conducted by either the guardian ad litem or a professional social services organization.

Additional Considerations

If adequate cause is provided and non-parental custody is granted, the court will also establish:

  • Whether the legal parents must pay child support and/or provide health insurance for the child
  • Whether the parents or guardian can claim the child as a federal tax exemption
  • Whether restraining orders are required to prevent legal parents from disturbing the peace of the child or guardian, such as entering the home without permission

Legal parents are typically entitled to visitation, but the court may decide otherwise in the case of willful abandonment, abuse, domestic violence or sexual offenses.

The exact procedure to petition for non-parental custody is different in every state. If you need assistance with this life-changing decision, contact the team of attorneys at American Legal Care.