Can Non-Biological Parents Seek Custody Rights?

Generally, child custody cases involve biological parents who must determine the terms of custody and visitation if they are not together. This process happens through mediation or in court. But it is also possible for individuals other than the child’s biological parents to seek custody.

This discussion explains the law regarding third-party nonparents and child custody cases in New Jersey, and first steps to take for anyone seeking custody of a minor child they are not related to by blood.

The Changing Shape of the American Family

Families come in all shapes and sizes. Now more than ever, the traditional nuclear family structure of a mother, father, and children has evolved to include same-sex unions and non-biological parental figures such as stepparents, other relatives, and family friends.

Fifty years ago, 42 percent of all households in the United States were nuclear families. Today, that number is approximately 22 percent. To function efficiently, family law must reflect the changing dynamic of the modern family in this country, opening the door for non-biological, third-party adults to seek custody if it is best for the child.

Reasons for Third-Party Custody

There are a few primary reasons why the courts will grant a third-party, non-biological adult custody of a minor child:

  • The biological parent does not want custody of their child.
  • The biological parent is incapable of caring and providing for the child.
  • The biological parent is not available because of death, desertion, or other circumstances.

Situations in Which Non-Parents Obtain Custody

Here are some specific scenarios in which a non-biological adult would seek custody of a minor child:

  • Consent. Biological parents can willingly ask the courts to terminate their parental rights, giving the third party the opportunity to adopt the child.
  • Consent guardianship. With consent guardianship, the biological parent does not forfeit their parental rights. However, the guardianship does give the non-parent custody and the right to make decisions about the child’s care. The biological parent can rescind their consent to the guardianship at any time and resume custody of the child.
  • Foster parent adoption. A foster parent who has been caring for a child for a long period can adopt them if the biological parents’ parental rights have been terminated for any reason.
  • Incapacity or unfitness. When biological parents will not consent to adoption but are unfit to care for the child because of abuse, addiction, or criminal activity, the non-parent can take steps to show they are unfit. Although this is not an easy process, it is critical for children whose safety and well-being are at stake.
  • Stepparent adoption. The laws and procedures for these situations vary from state to state, and even county to county. For that reason, it is always best to consult with experienced family law attorney specializing in complex child custody matters in one’s own community.

What Is a Psychological Parent?

For a biological parent to lose custody, the situation is probably extreme. The court does not take child custody matters lightly.

In New Jersey, the presumption is generally that children are best left in the care of the biological parent. A third party can overcome that presumption only if they can show the biological parent to be unfit or unavailable.

The courts may determine a non-biological, third party is the right person to raise the child if the non-biological person and the child have formed a significant parent-like bond. That is referred to as psychological parentage. Essentially, the psychological parent fulfills all the needs of the child, like a biological parent would.

There are certain criteria a person must meet to be considered a psychological parent in New Jersey: 

  • The child must have resided with the adult seeking psychological parentage for a significant period.
  • The adult must have formed a psychological bond with the child in question.
  • The adult has shown an ability to care for the child as a parent would, providing for all their physical and emotional needs.
  • A legal parent has given permission and support for the adult to enter a guardianship of the child.

Physical and Legal Custody in New Jersey

Before discussing the process for non-biological parents to obtain custody rights, it is helpful to explain the different types of child custody in New Jersey.

  • Legal custody. The right to make vital decisions about a child’s upbringing, including their education, religious training, and medical care. 
  • Physical custody. Refers to where the child resides most of the time.

Specific child custody arrangements vary from family to family. One parent can retain sole physical and/or legal custody, or parents can share both. Shared legal and physical custody is preferred by many parents because it offers an equal division of parenting time.

Custody Rights for Non-Biological Parents

If a family friend, stepparent, or other non-biological person has played an integral role in the child’s life over a long period and can show they are a psychological parent, they may choose to seek custody rights.

Being granted psychological parentage effectively gives the individual the same legal status as an adoptive or biological parent throughout custody proceedings. Although it may not guarantee custody or visitation, it will provide some leverage for someone seeking to remain a part of the child’s life.

How Do Non-Biological Parents Adopt a Child?

How does a non-biological parent adopt a child to whom they are not related, but still have a vested interest in their care?

Imagine a scenario in which a mother is considered unfit to parent, for whatever reason. Her husband divorces her and gets sole legal and physical custody of their young baby. A year later he marries again, and his new wife welcomes the chance to be a mother figure to the child. Over time, they form a bond and the stepmother becomes a psychological parent.

Tragically, the father passes away from illness. What will happen to the child?

Technically, the biological mother is first in line to assume custody. If she is not prepared to parent, the stepmother can pursue custody.

If the biological mother is available and willing to waive her parental rights, she can turn over custody to the stepmother and all parties can come to a custody arrangement peacefully. If she is unwilling or unable to give consent, the stepmother must prove the biological mother is unfit and make a case for adoption in New Jersey Family Court.

How Does a Non-Biological Parent Obtain Custody of a Child They Are Raising?

Chances are, if a non-biological parent is raising a child who is not their own, there is an issue with the parents. If custody is the goal, the first step is to hire a trusted family law attorney to lead the case.

With an attorney’s guidance, the third-party person can request consent for guardianship or adoption from the biological parents. If both parents are living, both must agree. If the parents do not provide consent, the next step is to show why it is not in the child’s best interests to remain in their care. This is true if:

  • The parent has neglected the child in some way.
  • The parent has emotionally, physically, or sexually abused the child.
  • The parent has abandoned the child and cannot be located.

Next it is time to complete and file the appropriate paperwork with the courts; generally, this is a petition for adoption or guardianship. The biological parents are notified when a third party seeks custody of their child, and they have the right to respond and potentially fight the bid for custody.

From there, the non-parent seeking custody must show the courts a parental relationship exists with the child, and they are capable and willing to provide for all the child’s needs. Some states require a home study in which a social worker visits the non-biological parent’s home to observe their living conditions and how they interact with the child.

If the biological parents do not agree to give up custody, a hearing is scheduled to decide the matter. Evidence is presented and witnesses are heard, much like a traditional court proceeding. The parents will be there to present their case as well.

In the end, the judge decides whether to give the third-party parent custody. Custody decisions and all legal matters involving minors are always based on what is best for the child, first and foremost.

Somerville Child Custody Lawyers at Lyons & Associates, P.C. Help Non-Biological Parents Seeking Custody Rights

Although it is not a simple process for a non-biological parent to obtain custody rights, in many cases, it is the best thing for child’s health and well-being. The Somerville child custody lawyers at Lyons & Associates, P.C. are proud to be a voice for the children of New Jersey. We are committed to guiding our clients to make legal decisions that are best for their children and their families. To learn more or to schedule a free consultation, call us at 908-575-9777 or contact us online. Located in Somerville and Morristown, New Jersey, we proudly serve clients in Somerset, Woodbridge, Morristown, Parsippany, Rockaway, Short Hills, Chatham, Randolph, Madison, and Morris Plains.