In a dispute between a parent and a non-parent third party, there is a presumption that the best interest of the child is served by awarding custody to the parent.
This presumption can only be rebutted if: (1) the parent is unfit; or (2) exceptional circumstances exist so that custody with the parent would not be in the child’s best interest.
A third party seeking custody must rebut the parent presumption by a preponderance of the evidence (a more likely than not or more than 50% standard).
When a third party is granted custody, it is always subject to modification based on a material change in circumstances.
A parent’s custodial rights are not terminated by the award of custody to a third party, nor is the parent precluded from seeking custody in the future. The parent may also be granted the right to visit and/or communicate with the child as part of a third party custody award.
- On July 16, 2012