A person who has been a child’s primary caretaker for any length of time, without consistent participation by the child’s parent, can pursue custody of that child. However there are several steps that must be followed carefully before a person can legally take custody rights to someone else’s child. If a person can provide that he or she has been the child’s primary caretaker for twelve (12) or more months (not necessarily consecutive) during a two (2) year period, and, that the parent has not been providing the child with basic needs such as food and shelter, health care, clothing and education, on a consistent basis, then that person has the right to ask for custody of that child. However, that person must still prove that the child’s best interests will be served by awarding custody to the non-parent.
If the child is under three (3) years of age, then the person need only prove six (6) months, not twelve (12) months, of primary care during that two (2) year period. Courts are very deferential to the rights of a biological parent, and therefore the burden of proving the three (3) key elements, i.e. ‘primary caretaker’, lack of participation of the parent, and ‘best interests’, by clear and convincing evidence, is on the person seeking custody of the child.
If a person is considering pursuing custody of a child of another parent, that person should consider the reasons behind the parent’s decision not be involved, or, whether it was a conscious decision at all. In some cases, the parent’s decision to leave the child in the care of another was not voluntary, due to an illness, or, a period of incarceration. Among the factors to consider in determining whether a parent failed to provide the child’s needs are:
- the intent of the parent or parents in placing the child with the de facto custodian;
- the amount of involvement the parent had with the child during the parent’s absence;
- the facts and circumstances of the parent’s absence;
- the parent’s refusal to comply with conditions for retaining custody set forth in previous court orders;
- whether the parent now seeking custody was previously prevented from doing so as a result of domestic violence; and
- whether a sibling of the child is already in the petitioner’s care.
Courts tend to favor the rights of the parent, and wish to preserve the parent-child relationship if possible. It is therefore imperative to assess these factors in deciding whether to pursue custody as a non-parent.