In child custody cases, it almost always happens that one or the other parent is granted physical custody of the child -- i.
e.
, the court determines that the child will live with one of the parents, and that that parent will have the right to establish and supervise the child's daily routines.
However, in special circumstances, third parties may become involved.
This usually comes about in two manners.
First, the court may grant custody of the child to a third party to begin with.
Perhaps neither parent is considered suitable to continue raising the child -- if both are substance abusers for instance, or have criminal records -- and there is an interested third party, such as a grandparent or favorite aunt, who is eager to step in.
Or, the child may already be living with one or the other parent -- that parent having already been granted physical custody -- and a third party, perceiving the situation to be not in the child's best interest, may petition the court for custody.
All judges must act in what they perceive to be the best interests of the child.
In this regard, they must not favor either a father or a mother, at least not theoretically, though many would argue that there is still a bias toward granting physical custody to the mother.
However, a parent is definitely favored over a nonparent in custody cases, so a third party seeking custody must present solid evidence.
The judge must determine the fitness of a parent to raise the child.
Different U.
S.
states may emphasize different aspects of parental fitness, but child abuse, violent behavior, drug and alcohol abuse, or criminal activity in the household would all likely render a parent unfit.
Often a judge will order a home evaluation conducted by a trained counselor or other professional, and may wish to interview the child to gauge whether any psychological harm is being done.
If a parent already has physical custody as granted by the courts originally, a third party petitions the court for custody, and the custodial parent is deemed a fit parent, the parent will keep the child.
The third party must submit solid evidence that the parent is clearly unfit.
However, if the court originally grants custody to a third party and a parent then steps in and petitions for custody, the nonparent stands a much better chance of retaining custody.
In this case, the burden of evidence rests upon the parent.
First, he or she must demonstrate parental fitness.
If the original determination was based the court's judgment that the parent was unfit, that parent must demonstrate a clear change of behavior.
Second, the judge will take into consideration how much interest the parent has shown in the child during the child's residence with the third party.
Has the parent visited as frequently as possible under the terms of the custody agreement? Has the parent provided financial support? Third, what were the exact circumstances that led to custody being awarded to a third party to begin with? And finally, how close are the child and the custodial third party? If this third party is a favorite aunt who has essentially reared the child from infancy because of some inadequacy on the part of the parent, then in all likelihood the child will stay with the aunt.
This last circumstance can be the most wrenching for all involved parties, and most problematic for the court.
The parent-child relationship has long been recognized as worthy of constitutional protection.
However, the trauma that a child would face in being forcibly removed from a happy situation with a close relative, to move into uncertain circumstances with an unpredictable parent, would clearly work against the best interests of the child.
These two principles must be brought into balance, and every case presents unique circumstances.
This is a challenging situation for any judge.