LEGALESE — Third Party Custody

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Often when we see a sad story on the news involving an abused child, we wonder why some other relative didn’t come in and take charge.

Of course, we will never know the precise family dynamics which set the tragedy into motion.  However, the law weighs heavily in favor of parents and makes it difficult for people to swoop in and do what needs to be done.

First of all, only a short list of folks can even ask the courts for custody of a child.  O.C.G.A. 19-7-1 (b.1) limits the number of people who can petition the court for custody to grandparents, great-grandparents, aunts, uncles, great-aunts and uncles, siblings, or adoptive parent.  This means that a cousin, a neighbor, a pastor, or a family friend so close they are called “aunt” or “uncle” cannot ask the court for custody in this way.  (A deprivation petition can be filed in juvenile court, but that’s a completely different ball of wax.)

Once the petition for custody is filed, there is a high burden of proof required to deprive a parent of his or her parental rights.  There is a ‘rebuttable presumption’ that a parent should have custody of his or her child.  Normally, when a person files an action with the court, the court doesn’t have any preconceived notions of what should or shouldn’t happen until the evidence is heard.  This makes for a level playing field.  When a rebuttable presumption exists, the court does have to make certain assumptions.  Here, the playing field is tilted in favor of the parents: the court has to start out assuming it is best for the children to stay with their parents.  The people filing the petition then have to prove otherwise.

In order to overcome that presumption, they have to show with clear and convincing evidence (which is more than a preponderance of evidence, and less than beyond a reasonable doubt, all of which is a topic for another day) that the children will suffer from some kind of harm, whether it be emotional or physical, if they remain with their parents.  And ‘emotional harm’ doesn’t just mean they would be sad or unhappy – it means long term, significant harm, which usually can’t be proven without some sort of expert witness like a psychologist or therapist.  Once a showing of harm occurs, the petitioners then have to show that their having custody of the children will be in the children’s best interests.

In addressing the ‘harm’ factor the courts have to consider “(1) who are the past and present caretakers of the child or children; (2) with whom has the child or children formed psychological bonds and how strong are these bonds; (3) have the competing parties evidence interest in, and contact with, the child or children over time; and (4) are there any unique medical or psychological needs of the child or children.”  Strickland v. Strickland, 783 S.E.2d 606 (2016).

Why is it so difficult to get a child away from his or her parents?  The answer is constitutional.  The 14th Amendments provision stating that no state shall “deprive any person of life, liberty, or property, without due process of law” has been invoked in these situations.  However, the parents’ constitutional rights to raise their children as they see fit is counterbalanced by the child’s own constitutional right to protection of his or her own person, all of which is considered in light of the state’s compelling interest in protecting children.

Whenever you have invoked rights, rather than desires or privileges, in order to ‘undo’ those rights you have to have a compelling interest and a narrowly tailored remedy.  This is why the code section only allows certain people to take away a parents’ rights, and only under certain specific circumstances.

Of course, these are the kinds of cases where no one wins.  Whether it is the relatives trying to get custody of the child, or the parents who the court ultimately rules for, the children, the innocents caught in the cross fire, are no doubt suffering.

Nothing in this article should be construed as legal advice.  It is being offered for informational purposes only. No lawyer can advise you on your case without having particularized knowledge of the unique facts of your situation.

About Lori Duff 352 Articles
Lori is the author of the bestselling collection of humor essays, "Mismatched Shoes and Upside Down Pizza" currently available exclusively on Amazon. In order to finance her writing habit, she is a practicing lawyer with Jones & Duff, LLC. She is married to Mike Duff, who is a retired DeKalb County Public Safety Officer, and has two amazing children who make cameo embarrassing appearances in her blog posts and who attend Walton County Public Schools. Her legal column, "Legalese", is meant to de-mystify and humanize the Court system. When asked about her writing, Lori says, "Life is too short not to laugh at every available opportunity. My goal is to make myself laugh -- and hopefully you will laugh along with me."

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