What Is Third Party Custody And How Does It Work?

single mom divorce

Occasionally, a child may have only one natural parent living, and that natural parent may be unable to care for the child. Or, a child may have three parents – two biological, and one “apparent” based on a mistaken belief that he was the father. In these situations, how does the court respond? What remedies do non-biological persons have with regard to custody?

In situations where a single parent becomes temporarily unfit to care for a child, a third party – usually a grandparent – will seek some form of temporary custody by filing for a guardianship or conservatorship in the probate court. Letters of guardianship allow the grandparent to act as a temporary custodian for the child until the parent becomes fit again. These situations occur when a parent becomes incarcerated or has a substantial health impairment (mental illness, drug addiction, stroke as examples).

In other situations where the issue of fitness may be contested, a third party will need to pursue a different avenue – in the family court. In Missouri, a third party may intervene in a custody matter or institute an independent proceeding for third party custody. However, in order to proceed, the third party must establish that either (1) each parent is “unfit, unsuitable, or unable to be a custodian,” or (2) the welfare of the child requires third-party custody from a person “deemed by the court to be suitable and able to provide an adequate and stable environment for the child.” Once a third party meets this threshold, the court can consider a third party custody arrangement, either for legal or physical custody or both. In reaching its decision, the court uses the best interests of the child standard.

Though the Missouri statute authorizes a court to enter a third party custody arrangement, it is not by any means automatic. The law has a preference for a child to stay with its biological parents. Indeed, the Constitution protects the parent-child relationship. To overcome this heavy presumption, the third party seeking custody must show by a preponderance of the evidence that neither biological parent has the ability to serve as a custodian – a showing that requires proof of abuse, neglect or impairment. A simple belief that a third party could do better is not enough to take away a child from its natural parents.

In our second example above, taken from a leading case on this issue, we can see how the “welfare of the child” exception plays out. In that case, the mother misled her husband to believe he was the natural father of the child. The husband raised the child for several years as his own. Some years later, when the child was a teenager, the parties divorced and the husband learned he was not the natural father of the child. The biological father wanted custodial rights. While the case became procedurally confusing, the ultimate outcome was that the husband, while not the biological father, could file a third-party petition for custody because he had been the de facto father for all of the child’s life. The court felt that it would be in the best interest of the child for the relationship between the husband and the child to continue.

Third party custody most commonly occurs when a grandparent needs to step in to raise a child because one or both of the natural parents cannot do so. But it is important to distinguish between third-party custody and grandparent visitation. A grandparent that is denied visitation by fit parents can ask the court for time with the grandchildren and that level of proof is much different than for third party custody – it only requires a showing of a denial for a three month period of time and only allows a certain amount of physical visitation. Third party custody gives the grandparent rights to physical or legal custody on the same level as a parent and requires a showing that it is in the best interests of the child and that the welfare of the child requires it.

It is sad, and sometimes tragic when a child suddenly has a parent that can no longer care for him or her. Many times this results in the child ending up in foster care. Fortunately for some children, a third party does want to step up and step in, and third party custody is the path to take.

If you have questions about third-party custody, contact us – we can help.

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