Will the Court Ever Give Custody to a Relative Over a Parent?

A divorce is typically never an easy or simple process, and both spouses often find themselves in disagreement regarding several major issues, including the division of marital property or spousal support. However, one of the most complex areas of a divorce involves child custody and visitation matters. Most parents fight hard in order to receive as much custody and visitation time as possible. There are circumstances under which a court may determine that neither parent should have custody of their children. While this is rare, it is a concern of many parents. Learning to understand the legal process can help you ensure that your parental rights are protected regarding the custody of your children.

In most cases, a child will spend time with both parents per a custody arrangement. Courts tend to want to do what is in the best interest, of the child, which is typically maintaining a solid and meaningful relationship with both parents. However, there are circumstances under which a court could make the determination to give a relative custody over a child, either during the divorce process, or permanently.

If there are egregious circumstances, such as allegations of child abuse or neglect, a court may make the determination to give a relative custody of the child during the period of time in which the matter is settled, instead of the child going to a foster home. Giving the child to a family member will allow them to retain a sense of comfort and familiarity. Again, the circumstances under which this occurs typically involve some form of serious behavior that would endanger the child such as abuse or neglect, drug use, illegal activity on the part of the parents, or abandonment of the child.

The court will make the determination regarding child custody either during the divorce process or after a divorce is finalized. However, in many cases that involve dangerous behavior regarding the children, a court will appoint a guardian ad litem to the divorce case. A guardian ad litem is a neutral third party who will officially look at the facts and circumstances surrounding the environment of the child in both parents’ homes and make determinations regarding what would be in the child’s best interest. After an investigation, the guardian ad litem will make a recommendation to the court regarding what they believe would be the best custody option for the child for their health, safety, and overall well-being. It is important to note that many parents worry that because a relative simply seems more financially stable that a court will grant custody to them. It is typically only under serious circumstances that a court would ever remove custody of a child from a parent.

Again, because the decision to remove a child from the custody of both of their parents is a serious one, the court will attempt to find a family member that would meet specific criteria to ensure the safety and well-being of the child. The guardian ad litem will do background checks, interviews with family and friends, interviews with schoolteachers and neighbors, and home studies in order to prepare a recommendation. Once the decision is made by a court that the parents no longer have the ability to care for the child due to safety concerns, the court will then look at the recommendations provided by the guardian ad litem regarding placement of the child.

Because giving custody to a relative is such a serious occurrence, the courts rarely make this decision. However, if they do make the decision to place a child in the custody of a family member, a parent will still have the opportunity to regain custody of the child. If a parent resolves and remedies their behavior and can show to the court that they have created a safe environment for the child, the court will likely grant custody back to that parent. Again, a court will always look to what is in the best interest of the child, and they tend to favor allowing communication and visitation with both parents when at all possible and safe for the child.

You may worry about some circumstances in your recent past that may be considered by a court to be detrimental to the safety of your children. Perhaps you are simply worried that your spouse will say negative things about your parenting and you will lose custody, or that custody will be granted to a family member. Consult with an experienced divorce lawyer at Arnold & Smith, PLLC in Charlotte, North Carolina at 704.370.2828. We can help you understand your legal rights. Contact us by phone or online today for your free consultation.