In general, child custody means that an individual has a legal and physical responsibility to take care of the needs of a child, which include:
- Housing;
- Medical care;
- Education; and
- Any other necessary aspects of their life that serve the child’s best interests.
Child custody issues are often resolved during a California divorce or separation case involving the child’s parents. In certain cases, other family members, such as aunts and uncles or grandparents, may want to intervene to obtain custody or visitation rights.
Typically, there is not a legal right to custody of an aunt or uncle. The parents of the child are deemed to be the legal guardian for making decisions that are in the best interests of the child.
There may be exceptions to this rule if there have been instances of neglect, abuse, or danger to the child while they were living with their parents. In these instances, the court may open a case for guardianship and examine the child’s best interest in deciding the custody case.
It is important to demonstrate to the court that residing with an aunt or uncle is in the best interests of the child. It must be determined that the child’s health or safety is in danger, and intervention is required to provide for their emotional development and/or physical health.
Examples may include a parent being convicted of a crime recently or instances of abuse. If an individual wants to get custody of their niece or nephew in California, they should consult with a local attorney in California.
What Is the Child’s Best Interests Standard, and How Does It Apply to Third-Party Custody?
The child’s best interest standard is the standard that is used to make any type of decision regarding children in family law cases. There are several factors that a court may examine under this standard to determine what would be best for the child involved.
If the child is old enough and mature enough, the court may consider their wishes when making a determination. The court will closely examine the relationship between the child and the parent.
In addition, the court will examine how the child may adjust to certain situations, cultures, communities, and schools. The court will then consider the physical and mental wellbeing of the parties involved in the case.
In general, these factors are balanced as best as possible to consider the child’s desires and what would be in their best interests. It is important to consult with a local attorney to determine the specific guidelines for cases involving child custody in California.
There is a difference when applying the child’s best interest standard to parents versus to third parties, such as aunts and uncles. Typically, a non-parent who is trying to obtain custodial rights must show one of the following circumstances applies:
For visitation issues, the third party has to demonstrate, by clear and convincing evidence, that there would be actual harm to the child if visitation was denied. This typically requires expert witness testimony.
What Is the Parental Preference Rule?
The parental preference rule is a legal concept that parents are favored to obtain custody of their children instead of other family members or individuals. Pursuant to this rule, a fit parent who is willing and able to care for their children has the predominant right to the custody and maintenance of their child.
The majority of states presume that it is better to place the child with one or both of their parents unless they are deemed to be unfit. This preference, however, may be challenged by proof that the child’s best interests are not being fulfilled.
This rule provides protections for biological parents who are willing and able to care for their child by giving them custody priority over any other individuals.
Can an Aunt or Uncle Take Custody of a Child?
The law provides that individuals such as extended family members, including aunts and uncles, may have some rights, but with limitations. Aunts and uncles may be able to open a case against a child’s parent, depending on the requirements of the state.
An aunt or uncle may also be able to intervene if a case is already pending against the parent in relation to the child. A guardian whom a court appoints has the legal right to decide what school the child will attend, where they will live, and to make medical decisions related to the child.
There are two ways in which an aunt or an uncle can obtain guardianship over a niece or nephew, including:
- Filing proper paperwork that is signed by the parent granting guardianship;
- The family court grants guardianship over the child in a court ruling because there is an open custody case or guardianship petition filed with the court clerk.
In some situations, an uncle or aunt may need to obtain custody of a nephew or niece when the child’s wellbeing is in immediate danger. A parent in a life-threatening situation may be able to grant temporary guardianship over their child using the proper legal documents.
This can allow the aunt or uncle to have custody of a child while their parent is absent or has passed away, such as in the following situations:
- Soldiers being deployed;
- Firefighters actively fighting an ongoing forest fire;
- An individual convicted of a crime and about to begin a prison sentence; and
- An individual with illness and undergoing radiation or chemotherapy treatments.
The aunt or uncle must be able to show to the court that they are fit to care for the child. If there is another relative who is also requesting custody or guardianship, it may be a difficult battle.
Do Aunts and Uncles Have Rights to See Their Nieces and Nephews?
In California, aunts, uncles, grandparents, and other relatives may be able to request visitation with children, even over the objection of the children’s biological or legal parents. These individuals may also be granted visitation even while a custody case is still pending in court.
The third party has to petition the court to be involved in the case and show that visitation would be in the best interests of the child. The petitioner would be required to show the court information that highlights the integral role that they have played in their niece or nephew’s life.
If the evidence provided shows their important role in the child’s life, they may be granted visitation rights, such as weekends or a couple of times each month. The best way to determine whether an individual has the option of requesting visitation rights is to consult with an attorney who has expertise in child custody and can assist the individual with determining what their next steps should be.
Should I Hire a California Attorney for Help with Niece or Nephew Custody?
If you are an aunt or an uncle who wants to get custody of your niece or nephew through the court system, it is essential to consult with a California child custody lawyer. Your lawyer can help you file the petition for guardianship in the proper court where your niece or nephew currently lives.
Your attorney can also advise you about the laws in California and what your legal rights and options will be. These types of cases are complex and will require a thorough examination of your ability to care for your niece or nephew.
