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

• Author: Barbara A. Atwood
• Pages: 48-51

48 FAMILY ADVOCATE www.shopaba.org

Third-Party Custody,

Parental Liberty, and

Children’s Interests

BY BARBARA A. ATWOOD

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), https://bit.ly/3rXbANZ.

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

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