Can I Get Physical or Legal Custody of a Child If I'm Not the Parent?

By George Khoury, Esq. on March 20, 2017 | Last updated on March 21, 2019

Child custody cases are among the most sensitive legal issues that courts must handle. While most frequently child custody matters involve a set of separated parents arguing over who should have physical or legal custody, sometimes individuals other than the parents are involved. However, unless there are extenuating circumstances rendering a child's parent(s) unable to maintain custody, non-parents will rarely be awarded any level of custody over parents (grandparents may be an exception in some states).

Generally, when handling child custody matters, courts are tasked with deciding what is in the best interest of a child who may be caught in the middle of a divorce, or separated parents, or dealing with having their parent(s) incarcerated, hospitalized, or worse, die. Frequently, rather than allow a child to be placed into a state's foster care system, relatives or close friends can petition to be awarded temporary custody, as well as permanent custody.

Temporary Custody by Non Parents

Like the name implies, temporary custody is only for a limited duration. However, courts rarely set an end date to a temporary custody order, but rather a triggering event. For instance, if a parent is hospitalized, or incarcerated, a court may award temporary custody to a relative until the parent is released. Typically, a temporary custody order will grant both legal and physical custody to the new custodian, and could be treated similarly to a guardian or conservatorship.

Permanent Custody by Non Parents

If permanent custody is sought by non parents, the non parents are likely looking at adoption, or a permanent foster, or guardianship, arrangement. Each has their advantages and disadvantages in any given situation. If a child's parent(s) will be incarcerated until the child is 18, or the parents die, a relative or close friend may seek to take permanent custody, or convert temporary custody to permanent. While this may involve slightly more paperwork with the court, it is still possible so long as the court is convinced the relative or friend can provide an environment and upbringing that will be in the child's best interest.

However, one complication that can occur is if an absent parent refuses to terminate their parental rights, or decides to step into the picture after a death, incarceration, or hospitalization. Courts tend to disfavor terminating parental rights without good cause or consent, even if a parent has been absent for some time.

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