When Custody Can Be Awarded to a Non-Parent

Thu 30th Nov, 2023 Family Law

Parental custody is by far the most common form of child custody in California and nationwide. However, it is by no means unheard of for children to live full-time with people who are not their parents, such as their grandparents, aunts and uncles, and even close family friends. In some cases, a divorce or separation (or the underlying reasons for a divorce or separation) can result in a living situation that is detrimental to a child, making non-parent custody a preferable option. If you’re considering seeking third-party custody, our Stockton child custody law firm can assist you.

Order of Preference for Granting Custody

California family law generally presumes that parental custody is in the best interest of children. However, it also recognizes that parental custody is not necessarily always in a child’s best interest. While biological parents have custody over their minor children by default, California family law establishes a clear order of preference for courts to follow when making custody decisions:

To both parents jointly
To either parent (with a consideration of which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent)
To a person or persons in whose home the child has been living in a wholesome and stable environment
To any other person or persons deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child

This hierarchy generally rests on the assumption that children will be most comfortable with people they already know and with whom they have a close relationship.

When Courts Award Custody to Non-Parents

It is rare for family law courts to grant custody to someone other than the child’s parents. Nonetheless, they are willing to do so if the party seeking custody can show by clear and convincing evidence that:

Granting custody to a parent would be detrimental to the child
Granting custody to the non-parent is required to serve the best interest of the child

When awarding custody to non-parents, courts prefer individuals who “have assumed, on a day-to-day basis, the role of the child’s parent, fulfilling both the child’s physical needs and the child’s psychological needs for care and affection, and who has assumed that role for a substantial period of time.” Persons who fit this definition generally will have an easier time obtaining custody, as the existence of such a relationship is taken as evidence that such custody will be in the best interest of the child and that parental custody would be detrimental to the child.

Seek Non-Parent Custody With Help From Our Stockton Child Custody Law Firm

Obtaining custody of a child when you are not one of the child’s parents is an uphill battle, but not an unwinnable one. To maximize your chances of success, you should speak to an attorney who has experience in these matters. For more information about non-parent custody, please contact the Stockton child custody law firm of McKinley, Conger, Jolley & Galarneau by using our online form or calling us at 209-477-8171.

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