Third-Party Custody: What Is It and How It Can Protect Your Family

Custody matters can be some of the hardest issues families face when going through divorce. Determining which parent has legal and/or physical custody, developing a compliant parenting plan and effectively communicating parental needs while placing the child’s well-being above all else is a complex – and stressful – process. Third party custody requests can complicate already delicate family matters. Let’s look at the definition of third-party custody, how the courts view such requests and some of the most common instances. Grandparent visitation and custody complaints generally fall into this category as well.

What Is Third-Party Custody?

Third-party custody occurs when someone other than the biological parents, such as a grandparent, aunt, uncle or family friend, seeks custody of a child. This arrangement often arises in situations where the parents are unable or unwilling to care for the child due to various circumstances, such as substance abuse, mental health issues, incarceration or other personal challenges.

Why Would the Courts Award Custody to a Nonbiological Parent?

Custody is never taken lightly, and first and foremost, a judge bases his or her decision on the well-being of the child. Georgia law starts with the presumption that biological parents have the fundamental right to make decisions about their child’s upbringing. This means that a third party must provide compelling evidence that granting them custody is in the best interest of the child.

One of the most common situations is awarding custody to a stepparent. To initiate stepparent adoption, the biological parent must consent to the adoption. If the other biological parent is absent or unfit, their parental rights may need to be terminated. The death of a biological parent is another instance where it would make sense for a stepparent to gain custody. The court’s primary consideration is the best interest of the child, which includes evaluating the child’s emotional ties with the stepparent and their overall well-being 

Another less common way for a nonbiological parent to gain custody of a minor child is by being declared an “equitable caregiver” of the minor child. The Equitable Caregiver statute (Official Code of Georgia Annotated § 19-7-3) enables an individual to obtain legal standing to seek custody if they can demonstrate that they have acted as a caregiver to the child and have established a significant emotional bond. Key criteria for establishing equitable caregiver status include:

• Caregiver role: The individual must show they have acted as a caregiver to the child on a regular basis, fulfilling daily responsibilities such as feeding, housing, education and overall nurturing.
• Emotional bond: They must establish a significant emotional connection with the child, integrating them into their family life and providing emotional support.
• Best interests of the child: The caregiver must demonstrate that granting them custody serves the child’s best interests, taking into account factors like stability, emotional ties and the child’s specific needs.
• Consideration of biological parents: The Equitable Caregiver statute does not ignore the rights of the biological parents in most situations but considers them when awarding custody.

This framework ensures that the child’s welfare remains the focal point of custody decisions, even in complex family dynamics.

What Other Kinds of Third-Party Custody Arrangements Are There?

If an individual is a grandparent, great-grandparent, aunt, uncle, great aunt, great uncle, sibling or adoptive parent to a minor child, they may have standing to seek custody of a minor child. The third party must first make a showing that an award of custody to the third party, rather than the parent, would be in the best interests of the child. The statute emphasizes that custody should be awarded in a way that respects the rights of biological parents unless they are deemed unfit or unable to provide proper care. The third-party relative would then need to show that such an award of custody would promote the welfare and happiness of the minor child. 

Georgia also accounts for grandparents, great-grandparents and siblings seeking visitation with a minor child under certain circumstances. 

Primary Consideration: The Best Interests of the Child

Overall, Georgia favors strong rights of a parent to custody of their children. In the very narrow circumstances where a third party may seek custody or visitation, the burden of proof is usually high to overcome a parent’s right to their child. However, Georgia law emphasizes that the primary consideration in awarding custody or visitation is what serves the best interests of the child. One of these third parties may gain visitation with a minor child if they can prove by clear and convincing evidence that the health or welfare of the child would be harmed unless such visitation is granted and if the best interests of the child would be served by such visitation. Courts consider factors like living with the child, financial support for the child and patterns of visitation and childcare with the family member when awarding custody. 

Megan Wyss is a partner at Boyd Collar Nolen Tuggle & Roddenbery. She handles family law matters, including high-asset divorce, annulment, contested child custody and modification of child support.