In general, child custody is having the legal and physical responsibility of taking care of a child’s needs. This includes providing housing, medical care, education and other necessary aspects of life that serve the child’s best interest. Depending on which state you reside in, there are different procedures for obtaining legal guardianship or custody of a niece or nephew. There are no legal rights for custody for aunts and uncles. Parents are deemed to be the legal guardians of a child and will make decisions that are in their best interests.
There may be a few exceptions if there is neglect, abuse, or danger to the child while living with the parents. In such instances, the court may open a case for guardianship and look to the child’s best interest in deciding the custody case.
Showing to the judge that living with the aunt or uncle is in the best interest of the child is important. There must be a determination that the child’s safety and health is in danger. Therefore, an intervention to protect the child’s emotional development and or physical health is necessary. For example, if the mother or father have been recently convicted of a crime, it may be dangerous for the child to continue to reside with them.
Furthermore, any sexual or physical abuse by either parent perpetrated on the child can cause long-lasting mental and emotional trauma for the child. Therefore, the family court would need to determine the various factors and keep the child’s safety a priority.
What Is the Legal Guardianship Process for Obtaining Custody of My Niece or Nephew?
The legal guardian process for obtaining custody of a niece or nephew will depend on the state but will typically follow similar steps. If an aunt or uncle is seeking custody of their niece or nephew, they can begin by consulting with a lawyer or going to their local county clerk’s office for advice on the exact paperwork and procedures to follow.
Here are some steps to follow throughout the process:
- It is important to note that the petition will need to be filed in the state where the child resides and that there will be a filing fee. Also, the individuals at the clerk’s office will not be able to provide any legal advice and can only explain how to complete the form.
- After this, the parent or parents will have to be served with the petition, which gives them notice of the filing and a time frame in which to respond. They can be served by the local sheriff’s department or by a process server.
- Once they have been served, the court will set a hearing date where both parties can appear and present their arguments. These cases are best handled by an attorney, as proving a parent is unfit or has abandoned a child can be a difficult process.
What Is the Child’s Best Interests Standard, and How Does it Apply to Third Party Custody?
Depending on the state you reside in, the guidelines for the child’s best interest standard may vary. Furthermore, it is important to note that there is a distinction with this standard when it applies to third party custody issues. In short, the child’s best interest standard is the framework for the majority of the family law cases dealing with decision making involving a child. There are several factors a court examines under this standard to determine the well-being of the child.
Specifically, it considers the child’s desires and wishes when old enough to make this judgment. It also closely examines the relationship between the parent and the child. Furthermore, it looks at how the child will adjust to certain situations, cultures, community, and school. Lastly, it considers the mental and physical wellbeing of the parties involved.
The family courts generally attempt to balance these factors along with the child’s wishes to make custody decisions. Each state has its own set of guidelines in determining the child’s best interest standard. It is crucial to identify the ones outlined in your local state to ensure you are meeting the requirements for a child custody case.
As mentioned above, there is a difference between applying this standard for the parents versus third parties for visitation. For custody, a third-party must show one of the following circumstances:
For visitation, the third-party must prove, by clear and convincing evidence, that there would be actual harm to the child if visitation is denied, which will often require expert witness testimony. A third-party custody case is challenging to win, but if you want to seek custody and visitation time as a relative of a child, you should have the opportunity to do so.
What Is the Parental Preference Rule?
The Parental Preference rule is a legal principle that favors the parent to obtain custody of the child rather than another person. Under this rule, fit parents who are able and willing to care for their children have the predominant right to the custody and maintenance of their child. In most states, there is a presumption that favors placement of the child with one or both of the parents, unless the parents are deemed to be unfit.
However this preference can be challenged by proof that the child’s best interests are to the contrary. This rule provides protection for the biological parents rights who are willing and able to care for their children by giving them priority of custody over anyone else.
As an Aunt or Uncle May I Have Custody Rights?
The law allows third parties, such as the extended family of aunts and uncles, to have some rights, but with limitations. States differ on the procedure but they may be able to open up a case against the parent depending on each state’s requirements. They are also allowed to intervene when a case is already pending against the parent related to the child.
The guardian appointed by the court, has the legal right to decide what school the child will attend, where they will live, and make medical decisions related to the minor. There are two ways an aunt or uncle can obtain legal guardianship over their nieces and nephews, but this differs among the states:
- File proper paperwork and signed by the parent granting guardianship and;
- The family court can grant guardianship over the child in a judge’s ruling because there is an open custody case or guardianship petition filed with the court clerk.
Sometimes, uncles and aunts need custody of nephews and nieces when the child’s wellbeing is in immediate danger. Parents in life-threatening situations can grant temporary guardianship over the children through the proper legal documents. This can give the aunt or uncle custody of the child during the parent’s absence or in case of their death. Some examples include:
- Soldiers being deployed;
- Firefighters actively fighting an ongoing forest fire;
- A person convicted of a crime and about to begin a prison sentence and;
- A person with illness and undergoing radiation or chemotherapy treatments.
However, you must prove in court that you are fit to care for the children. If another close relative is also fighting for custody or guardianship, this will be a difficult battle.
Do Aunts and Uncles Have Visitation Rights with Their Niece or Nephews?
Visitation rights with a niece or nephew will generally depend on which state you live in, as there are different visitation rights laws for each state. For instance, some states will allow an aunt to apply for visitation rights, but only in the event that the parents are separated. If the two parents are not divorced or separated, and you attempt to seek visitation rights, the court will usually side with the parents. Very few states allow extended family members to request visitation rights.
In order to be included in the visitation case, you will need to petition the court for visitation. You will also be required to provide the judge with information that highlights the integral role that you have played in your niece’s or nephew’s life. If the evidence you provide is deemed by the judge and courts to be sound, it is possible that you will be given a certain amount of visitation rights, such as on weekends or a couple of times each month. The best way to identify if you have the option of requesting visitation rights is to consult with an attorney who has expertise in child custody, they can assist you with determining what your next steps are.
What Will I Have to Show to Obtain Custody of My Niece or Nephew?
There are a few legal bases that an aunt or uncle can use to obtain custody of their niece or nephew, which are discussed below.
Termination of parental rights
In some cases, the parents may be willing to terminate their parental rights or consent to an aunt or uncle having custody of their child using voluntary relinquishment. In some situations, the parents may agree to a temporary guardianship, for example, if they are deploying active military service members.
Child’s best interests
If the parents are not willing to terminate their parental rights voluntarily, the aunt or uncle will have to show that it is in the child’s best interests for them to have custody. This will require a showing that the parent or parents are unfit or that child abandonment has occurred.
Unfit parent
An unfit parent is one whose actions may place their child in danger or cause them emotional or mental harm, such as drug addiction or abuse.
Evidence that can be used to prove that a parent is unfit may include, but is not limited to:
- School and medical records
- Photographs and videos of the parent’s home
- Testimony from:
- Counselors
- Therapists
- Teachers
- Coaches
- Other individuals who are familiar with specific instances in which the parent displayed unfit behavior
- Police reports detailing domestic violence
- Details of home visits and inspections
- Criminal records
A lawyer can help obtain and present this type of evidence in court.
Child abandonment
Child abandonment occurs when the guardian or parent does not provide for the child’s health, safety, and welfare.
Child abandonment may also occur in cases of emotional abandonment, such as if a parent works all the time and does not offer physical contact or emotional support or if they are an addict.
What Are Some Common Challenges to Obtaining Custody of a Niece or Nephew?
One of the main challenges to obtaining custody of a niece or nephew will be the parental preference rule. This rule provides that the preference for custody of children is a biological parent over a non-biological parent.
This rule provides protection for biological parents who are willing and able to care for their child. It may also be referred to as the parental preference doctrine or the parental superior rights doctrine.
Another challenge is that the burden of showing that a placement with someone other than the biological parent is placed on the party seeking the alternative placement. A parent’s custody rights can only be taken away for convincing reasons.
It is important to remember that disagreements over parenting styles will not be enough to show a parent’s lack of fitness to have custody of their child. The requesting party will have to show that it is in the child’s best interests to be in their care for one of the reasons discussed above.
Should I Hire an Attorney for Help with Niece or Nephew Adoption?
If you, as an aunt or uncle, are thinking about obtaining legal guardianship over your nephew or niece through the courts, the first step is to file a petition for guardianship with the appropriate court in the county where the child currently resides. It will be crucial to contact the local state child custody lawyer to understand what your rights and legal options are.
Child custody cases are complex and require a thorough evaluation of the person requesting custody of the child if they are not the biological parent. Your lawyer can explain what aspects of your life will be reviewed and how you can present your best case in court.
