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Millions of American children are raised primarily by people other than their parents, mostly by grandparents and other kin, and millions more are raised by third parties for some period of their childhood. In most such situations, informal arrangements negotiated by family members and kinship networks effectively provide care for these children. Many cases, however, require some formal legal arrangement; third party custody orders are needed to obtain necessary services and benefits for children whose parents are absent, and to protect children in the rare but still significant instances in which a parent is abusive or neglectful.

States currently have widely varying means of adjudicating child custody disputes between parents and third parties. One Supreme Court case, Troxel v. Granville, addresses contests between parents and third parties. While Troxel ruled for the parent in that particular case, it neither represents a strong parents’ rights opinion nor does it provide states with clear guidance on how to shape third party custody statutes. This Article argues that states should enact child custody statutes according to three primary points. First, due to the wide range of situations in which a third party custody order may be necessary, states should permit a broad set of individuals to seek custody. Concerns that broad standing provisions would lead to a flood of meritless lawsuits are not borne out by actual data in states that have had nearly unlimited standing. Second, recognizing the constitutional primacy of the parent-child relationship, states should hold third parties to a high substantive standard, and require them to prove that parental custody would harm the child in some way. Any lesser standard — such as the best interests of the child standard applied in some states — insufficiently protects relationships between parents and children. Third, recognizing that the core parental right of the “care, custody and control” of a child is at stake, states should generally hold third parties to a clear and convincing burden of proof. Most states apply a preponderance burden or have not specified a burden. One exception should apply: When a third party has acted as a parent for a significant time and a child’s birth parent has not done so, then that parent’s constitutional rights are diminished, society’s interest in maintaining the long-term bond between the child and third party is enhanced, and a lower burden of proof should apply.


Family Law | Juvenile Law | Law