Does a Third Party Have Child Custody Rights?

In a perfect world, every child could grow up in a healthy, nurturing home environment. But the reality is, not everyone is ready or capable of being a good parent. For that reason, the laws allow someone else to step in and take over those parental responsibilities when a parent cannot, if they meet certain criteria and if third-party child custody is in the child’s best interests.

Every custody situation is different and must be carefully evaluated on a case-by-case basis to ensure the outcome is best for the child. This discussion explores when and why custody is awarded to someone other than the biological parents.

Types of Child Custody in New Jersey

Before exploring why and when a grandparent or another third-party would get child custody, it is helpful to review the types of custody that exist under the law.

When discussing divorce and other family law matters, you will hear the following terms: legal custody, physical custody, sole custody, and joint custody.

Legal custody refers to the right to make decisions about a child’s care and well-being. That includes issues related to their education, health care, and religious participation. If a parent or third party has physical custody of the child, that means the child resides primarily with them.

A parent can have sole custody, meaning they are the only adult who participates in physical custody and legal custody. Many parents have joint custody and share the physical responsibilities and the decision-making regarding the child’s upbringing.

Third-Party Custody in New Jersey

New Jersey family courts decide child custody matters based on the child’s best interests. Sometimes that means stripping a biological parent of their parental rights. Or, one or both parents may have died. In other cases, a biological parent cannot be located. There are a variety of reasons why a biological parent cannot actively fulfill their responsibilities. Some will be discussed below.

Grandparents and child custody. In New Jersey and across the nation, more grandparents have third-party custody than ever before. A recent study found that almost three million grandparents are raising their grandchildren in the United States.

Among those children raised by grandparents, nearly 30 percent are more likely to have lived with someone with a substance abuse problem and more than 35 percent were more likely to have a parent in jail compared with children raised by their parents.

The data suggests grandparents are stepping in to take over for unsafe, unreliable, or unavailable parents. Because seniors are living longer, healthier lives, grandparents taking over parenting duties is much more realistic than it may have been for past generations.

Unfit parent. The standard to remove a minor child from the custody of their parents is understandably quite high. Ideally, the courts prefer to keep families together. New Jersey law presumes that custody of the children should go to the parents.

However, if the child is at risk because of a parent’s behavior, it is imperative that a third party steps in to protect them. In New Jersey, a parent is considered unfit if they are unable to provide a secure, safe, nurturing home for their child.

Children left in the care of unfit parents are at risk of suffering serious emotional, physical, and emotional harm that can impact them well into adulthood and throughout the course of their lives.

Possible grounds to find a parent unfit include:

  • Substance abuse or addition issues
  • A previous child neglect or endangerment incident
  • A history of criminal activities or violent behavior
  • Mental health issue

For a third party to lawfully bring a claim for custody, the law states they must prove that both parents of the child are grossly immoral or unfit. They must show clear and convincing evidence of parental unfitness, abandonment, gross misconduct, or the existence of exceptional circumstances affecting the welfare of the child.

Although the burden of proof is high, a skilled lawyer can help a third-party psychological parent prove their claim and possibly assume custody of the child to protect their well-being.

Psychological parent. In New Jersey and several other states, an adult seeking child custody must be considered a psychological parent. In a legal context, a psychological parent is an adult who maintains a strong, parent-like bond with a minor child, despite not being a biological parent.

A psychological parent can be everyone from a grandparent, aunt, uncle, older sibling, family friend, or even a neighbor. This person is considered a psychological parent by declared or implied consent based on the following criteria:

  • The legal parent consented to or helped foster the parent-like relationship.
  • The third-party person and the child lived in the same household.
  • The third-party person assumed parental duties by taking on the responsibilities of care, education, and development without the expectation of payment.
  • The third-party person has maintained a parent-like role long enough to establish a bonded, dependent relationship, like that of a parent and child.

If the third-party individual meets all the requirements to be declared a psychological parent, they can pursue custody of the child.

Common Reasons Why Parents Lose Custody

Now that it is clear who may be a candidate for third-party custody, let us discuss some scenarios in which a non-biological person may obtain physical and legal custody of a minor child.

Both biological parents may be alive but are deemed unfit and lose custody. If one parent has passed away and the surviving parent is unfit, custody can be lost as well. In some cases, both parents give up their parental rights.

Abuse in all its forms is another common reason why parents lose custody. That includes physical abuse, sexual abuse, corporal punishment, and neglect.

Abduction is another common reason parents lose custody of their children. A parent who does not honor their parental agreement and takes the child out of state or does not return them on time can jeopardize their right to custody.

Factors that Impact Child Custody Determinations

Child custody matters are highly complex, especially when they involve unfit or deceased parents. When it comes time to make a determination about third-party custody, the courts consider a wide range of factors to decide what is best for the child, above all.

These factors include:

  • The child’s age
  • The child’s needs
  • The fitness of the parents
  • The stability of the home being offered
  • The third party’s job and other responsibilities
  • How the child interacts with living parent and/or siblings
  • The geographic location of the third party in relation to the parent
  • The parents’ willingness to accept a third-party custody arrangement
  • The child’s preference, if they are old and mature enough to express their wishes
  • The parties’ willingness to cooperate and communicate regarding all matters related to the child

If you have concerns about a child that you care for, or you are ready to pursue physical and legal custody, a consultation with a trusted child custody lawyer should be your first step. Even if you consider yourself a psychological parent, there are no guarantees the court will agree. It is beneficial to discuss your role and rights as a psychological parent so that you are prepared to navigate any legal challenges that may arise in your case.

Morristown Child Custody Lawyers at Lyons & Associates, P.C., Help Clients Seeking Third-Party Custody of a Child in Their Care

If you have a parental role in a minor child’s life and want to start the process to obtain full custody, the Morristown child custody lawyers at Lyons & Associates, P.C., can help. We know what is at stake when it comes to child custody cases. We use every legal tool available to prove your case and protect the child you care about. 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.