Generally, states want natural parents to have custody of their children. Only special circumstances allow a third party to possess another’s kids.
Sometimes, third-party child custody happens by agreement. In other, extreme circumstances, children must be removed from an unfit parent.
In this article, we will discuss various ways the state can grant custody to a non-parent. We will focus strictly on California law, but many of these circumstances apply in other states as well.
Guardianship
Circumstances could force parents to give up their children for a bit. Perhaps life is in an upheaval, and the parent simply can’t provide proper care at the moment. In situations like these, parents can allow someone to take guardianship of the child. This is called “consent guardianship.”
The guardian does not become the child’s legal parent, but they can have full legal authority over the child. They can make decisions about healthcare, education, and so on. Parents can also limit a guardian’s authority, making sure they have final say over major decisions.
Both legal parents must agree to consent guardianship. If either parent protests, the court simply won’t allow it.
When a child is removed from an unfit parent, that child enters the system. From there, the court may assign them to a professional guardian or a group home. If an outside party wishes to gain guardianship, they must plead their case to the courts. They will need to demonstrate why their inclusion is better for the child. When this plea comes from a relative such as a grandparent or an uncle/aunt, the courts may be more sympathetic to the request. If it comes from a longtime family friend, the requestor may have a difficult battle ahead of them.
Third-Party, Non-Parent Custody
Non-parents with a close relationship with a child may be able to file for custody. They can petition for “in loco parentis” custody, loosely translated to “in place of the parents.”
The requesting adult must file within the jurisdiction of the child’s current residence, and they must make a case for why they deserve full or partial custody. The child could be under the care of either a parent or a guardian, and the request must acknowledge all stakeholders.
In loco parentis will not be granted on a whim. The requestor must demonstrate the following:
- They have a long-term relationship with the child.
- They are capable of providing for and parenting the child.
- It is in the child’s best interests to be in this adult’s care.
- Not being in this adult’s care will be detrimental to the child.
- The child’s parents are deceased, unmarried, or legally separated.
In loco parentis is a great option for stepparents who divorce the child’s natural parent. In many scenarios, all the above criteria are easily met. The stepparent has a close, long-standing, parental relationship with the child. The child could suffer emotional distress in the stepparent’s absence, and they are currently in a single-parent home. As long as the stepparent can keep a stable home life for the child, they could receive full or partial custody.
How an Unfit Parent Loses Child Custody
We’ve briefly mentioned what may happen when a child is removed from an unfit parent. Let’s take a look at how that process works in California.
Someone can file an official plea, asking for a parent’s rights to be removed. Sometimes, the authorities come across a dangerous home environment, and they choose to initiate the revocation of parental rights.
Evidence is important in this scenario. If you or the authorities accuse a parent of being unfit, you must build a case. Think of it as a criminal trial. You need evidence of abuse, neglect, poor home conditions, malnourishment, etc.
An Unfit Parent’s Safety Plan
If a parent is truly disinterested, they will make no effort to defend themselves and allow their kids to be taken away. Sometimes, however, a parent is truly trying their best, but they’re failing. Perhaps they don’t have enough education to properly care for the kids, or they grew up with unhealthy homelife models.
California is usually willing to work with such parents. The state involves Child Welfare Services, which creates a safety plan. This is an action plan that the parent must follow to retain their legal rights. The CWS monitors their progress and may even provide help for the parent’s weaker areas. The CWS is generous about this plan. It can allow parents many opportunities to show improvement.
Meanwhile, the CWS won’t let the kids remain in a dangerous environment. The children will go to someone else’s care while the parent attempts to pass the safety plan. Parents may be allowed visitation, but they cannot have full custody of the kids at this time.
If the parent fails to finish the plan, they may have their parental rights revoked. Revocation isn’t an automatic result of failing, but the failure makes it easier for the state to remove the rights if necessary.
If the parent successfully passes the safety plan, the CWS clears them, and they can get their kids back. The parent is no longer monitored, and their passing can help shield them from any future custody disputes.
If you believe that a child needs your help, and you want to gain custody over them, call our firm today. We have assisted many clients in protecting kids from unfit parents. For a free consultation, call (916) 299-3936, or contact us online.
