A Third Party Has Custody of My Child. How Do I Get Him Back?
Posted By Posted by Damien McKinney on Feb 15, 2013 2:35pm PST || Feb 15, 2013
Sometimes parents have to grant custody of their children to third parties because of life events that are out of their control. Often time this third party is a grandparent or other family member. The grandparent may be granted custody by agreement, due to an extraordinary life changing event, such as the death of the other parent, incarceration, sickness, or otherwise. These type of interfamily agreements need to be carefully drafted by your expert family law attorney to avoid any pitfalls in the future.
After a period of time, the parent may overcome the obstacle and seek to have custody of their child granted back. A recent Second District Court of Appeals case dealt with the standard required to get an order granting the child back into the parents care. In Slover v. Meyer, the maternal step-grandmother was given custody of her grandchild pursuant to agreement with the child’s father. (The Mother had passed away). After a period of time, the father sought to have custody transferred back to him. The trial court in this case used the wrong standard of law when it made the determination not to give the child back to his father. The trial court used the standard of law that is commonly used in custody disputes that arise between two parents, the substantial change in circumstances and best interests of the child standard. The appeals court reversed the trial court’s ruling and found that the trial court utilized the wrong legal standard. Instead, the trial court should have used the parental preference standard. The public policy and preference is for the child to be with his natural and legal parent over any third party or family member. The parental preference standard states that “when a custody dispute is between a natural parent and a third party, custody should be denied to the natural parent only when such an award will, in fact, be detrimental to the welfare of the child.”
The appellate court went on to define detriment as “more than the normal trauma caused to a child by uprooting him from familiar surroundings such as often occurs by reason of divorce, death of a parent or adoption. The change in custody would have to be likely to produce mental, physical, or emotional harm of a lasting nature.” So, absent any long lasting harm, the court is charged with reuniting the child and the biological parent. If you are facing a situation where you would like to get custody of your child back from a third party, it’s best to contact your expert family law attorney to discuss the proper pleadings and legal standard necessary to file such a case.