Third-Party Custody, Parental Liberty, and Children's Interests

AuthorBarbara A. Atwood
Third-Party Custody,
Parental Liberty, and
Childrens Interests
custody and decision-making authority represents a deeper
intrusion on parental autonomy and liberty than periodic
visitation. As one court put it, “third party custody petitions
challenge the liberty interest of a parent in a way that is
fundamentally dierent from visitation petitions.” Fish v.
Fish, 939 A.2d 1040, 1059 (Conn. 2008). Accordingly, a
nonparent seeking custody generally must meet a heightened
burden of proof and make more demanding substantive
showings than needed for visitation. e challenge for courts
is to give due deference to the presumptive right of parents to
determine their children’s upbringing while also protecting
children from harm.
Setting the Stage
All children can form signicant bonds with others who are
not legal parents, but that likelihood increases for children who
live with one parent and, perhaps, a stepparent, cohabitant,
grandparent, or other extended family member. Demographics
indicate that many children in the United States live with
nonparents during all or part of their childhood. While about
70% of children live with both parents, the remainder
experience a range of living situations, including residing with
a single parent, a relative, or an unrelated person. Almost 40%
of births today in the United States are to unmarried mothers,
with signicant variations by race and ethnicity, and roughly
one in four solo parents are living with their own parent. In
addition, as a result of the opioid epidemic and other socioeco-
nomic stressors, a growing number of children live with
grandparents or other family members. See generally U.S.
Census Bureau, Historical Living Arrangements of Children
(Nov. 2019),
At common law, third parties had no right to maintain
contact with children over a parent’s objection and no
standing to seek such access in court. Nevertheless, even
absent statutory authorization, state courts exercised equi-
table powers to award custody to a nonparent, particularly
when the nonparent had been caring for the child and the
family had experienced a traumatic disruption, such as the
death of a parent. e courts in those cases relied on their
core duty to protect the welfare of the child and acknowl-
edged that overriding the presumption of parental custody
was justied only in exceptional circumstances. See, e.g.,
Cliord v. Woodford, 320 P.2d 452 (Ariz. 1957) (in father’s
habeas corpus action following mother’s death, holding that
stepfather should retain custody of children whom he had
helped raise since infancy). Inevitably, courts sometimes
awarded custody to third parties based on subjective and
misguided assumptions about the parent’s lifestyle and the
child’s best interests. In the infamous case of Painter v.
Bannister, 140 N.W.2d 152 (Iowa 1966), for instance,
grandparents retained custody of a young boy following his
mother’s death based in part on the “Bohemian” and “artsy”
lifestyle of the father and the perceived benet to the child of
a more conventional home.
Two decades after Troxel v. Granville, 530 U.S. 57
(2000), the law governing third-party or nonpar-
ent contact with children is still in ux. is
article explores current third-party custody law,
including the evolving standards in the courts,
illustrative statutory frameworks, and potential legal issues
that can arise in nonparent custody litigation. Also, the
approaches of the Uniform Nonparent Custody and Visita-
tion Act and the proposed Restatement of Children and the
Law. will be summarized. Finally, the article briey describes
recent court decisions involving nonparent custody claims to
give readers a sense of the law in action.
While “custody” and “visitation” are outmoded terms in
the interparental context, they are still widely used in
disputes between parents and third parties. Here, a claim for
“custody” denotes a request for extended physical custody
along with decision-making responsibility for the child’s
day-to-day care. In contrast, “visitation” denotes periodic
short-term contact with a child.
Concededly, the line between custody and visitation can
be blurred, but a claim by a nonparent for long-term physical
Published in Family Advocate, Volume 43, Number 4, Spring 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof
may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

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