Can You Get Custody or Visitation with a Child Who’s Not Yours?

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While most custody disputes exclusively involve the child’s parents, other relatives can also become involved. If you’re related by blood or marriage to a child whose parents are getting divorced in Utah, you should know about your rights and responsibilities under state law.

When Parental Care isn’t in the Child’s Best Interests

If you’re a grandmother, grandfather, aunt, uncle, brother, sister, stepfather, stepmother, stepsister, or stepbrother, this article is for you. (If you’re a grandmother or grandfather, you might also be interested in reading our previous article about child custody for grandparents in Utah.)

Parents in Utah have the opportunity, and are even encouraged, to create their own parenting plans. However, this isn’t always possible. If the parents are unable to reach their own agreement, the court will step in to make an outside determination. When determining child custody, judges weigh a variety of factors to make whichever decision ultimately serves the child’s best interests.

child splashing around blue plastic pool enjoying himself

To quote Utah Code § 30-5a-103(1), “It is the public policy of this state that parents retain the fundamental right and duty to exercise primary control over the care, supervision, upbringing, and education of their children.” However, the general “presumption that a parent’s decisions are in the child’s best interests” is rebuttable. In other words, while the courts assume parental custody is in the child’s best interests – the deciding factor in all custody rulings – it is also possible for non-parents to challenge that assumption by meeting certain requirements.

Criteria for Winning Custody in Utah When You’re Not the Parent

In order to have a chance of winning custody, the non-parent relative will have to present “clear and convincing evidence” which proves that all of the following criteria are satisfied:

  • You have willingly and deliberately taken on the “role and obligation of the parent,” which could include anything from dropping the child off at school, to providing them with meals, to bringing them to doctor’s appointments, and more.
  • You and the child are emotionally bonded, and have “created a parent-child type relationship.”
  • You have personally added to the child’s quality of life, whether that’s by providing wisdom and support (“emotionally”) or by paying for the child’s expenses (“financially”). Your case will be strongest if you can prove that you have been there to support the child both financially and emotionally.
  • You’ve taken on the role of the parent for reasons other than being paid to provide surrogate care.
  • It would be in the child’s best interests to continue his or her relationship with you, and it would harm the child’s best interests if your relationship came to an end.
  • The child has absentee parents, abusive parents, and/or neglectful parents. Abuse or neglect must have been found by the court.
    • If you’re concerned about suspected child abuse or child neglect in Utah, you can call the Department of Child and Family Services’ child abuse/child neglect hotline at (855) 323-3237.
    • You might also be interested in learning about how to prove an unfit parent in Utah. When a parent is proven to be unfit, his or her parental rights can be terminated.

If every single one of these criteria are satisfied, the court “may find the presumption [of parents being the best caregivers] rebutted and grant custodial or visitation rights to a person other than a parent.”

sad little girl child custody battle

It’s important to emphasize the statute’s use of the words may find, not will find. If you’re seeking custody or visitation, it is critical to approach the matter with legal assistance from an experienced child custody lawyer who knows how to present a strategic and nuanced case before the judge.

In addition to representing you in court, your attorney will also help you prepare and file all the legal documents you need. For instance, to get the legal proceedings started, you’ll have to file a petition in the district court where the child currently lives, or used to live during the past six months. The petition must contain detailed facts explaining why you have the right to file the petition in the first place, including an explanation of how all the requirements listed above have been satisfied. The parent must also be served with a notice of the petition.

To learn more about your legal options in a free and completely confidential consultation, call Salt Lake City family law attorney Darwin Overson today at (801) 733-1308. Darwin will answer all of your questions, and help you understand your legal rights as the relative of a child whose parents are filing for divorce.