When a court makes a determination in a child custody case, it must consider the 16 enumerated custody factors set forth by the statute. In addition, the custody statute sets forth additional considerations for the court to weigh. Both parents and non-parents can sue for custody, assuming they have standing to do so. The law provides for certain presumptions depending on the relationship of a party to the child in a custody action.
Where a child’s parents are seeking custody of a child, the parents are to be placed on equal footing by the court. No presumption, meaning no assumption that the child would be best off in a person’s custody, should be given to either party, as both are parents to the child.
In a case where a parent and a third party are each seeking custody of a child, there should be a presumption that custody should be awarded to the parent. This presumption may be overcome by the third party by clear and convincing evidence. If a third party can present evidence that it is in the best interest of the minor child to be in the custody of that third party, rather than the custody of a parent, the court can determine that the presumption has been overcome and that the child should be in the custody of the non-parent. The third party carries the burden to overcome the presumption created by the statute, but the ultimate decision of where the child will reside will be determined based on what is in the child’s best interest.
If two third parties are seeking custody of a child, those parties are to be placed on equal footing by the court, and no presumption should be given to either party.
In some cases, it is in the best interest of a child to be in the custody of a non-parent. If a grandparent, aunt or uncle, or another third party is seeking custody of a child who is not their own, it is important that they understand that they will be held to a standard different than a parent.
To schedule an appointment with one of our attorneys or for further information, call us at the Law Offices of Gregory P. LaMonaca, P.C., at (610) 892-3877