(Shutterstock)

Clients who are nonparents or “third parties” and wish to secure rights with respect to children pose challenges for family law attorneys. The two most frequent scenarios involve grandparents and stepparents or a partner in a same-sex relationship after separation.

Virtually all states have statutes that permit grandparents or stepparents to seek some form of visitation rights. The circumstances under which these are granted are generally limited to individuals who fit a specific category and therefore have standing to bring a claim.

Then the seekers of rights must establish that it is in the best interest of the child to continue to have a relationship with them. This burden can be substantial because they must overcome the presumption articulated by the U.S. Supreme Court in Troxel v. Granville in 2000, that parents who are objecting to the visitation request are presumed to be acting in the child’s best interest.

SEEKING CUSTODY

Clients who seek custody of children with whom they have had a relationship face an even higher burden than those merely wishing to have visitation rights.

Again this is because of Supreme Court holdings recognizing the constitutionally protected rights of parents to care, custody and control of their children.

Historically, a nonparent seeking custodial rights was required to show that the parent was unfit or neglectful. In many states, however there has been a shift, allowing third parties to obtain custody when there are extraordinary circumstances.

In these cases, the attorney should begin by obtaining a detailed history of the client’s contact and involvement with the child.

Evidence of financial and emotional support should be sought. The acquiescence of the parent in the formation and maintenance of the relationship could be critical. Information about how the dispute related to custody arose is vital in setting the stage for litigation.

Ultimately the client is going to have to establish why he or she is a better custodian than the child’s parent or why there should be continuing contact with the child over the parent’s objection.

EQUITABLE PARENTHOOD

Cases involving unmarried same-sex partners who have children together involve a different set of issues. In most of these cases, the nonbiological caregiver is asserting a claim to be recognized as a parent on equal footing with the biological or adoptive parent, not seeking to be declared a third party entitled to visitation or custody.

Clients in this category have had success under a number of theories. Because they generally do not enjoy the designation of legal parent, which generally flows either from marriage, biology or adoption, they have often had to seek equitable relief. Broad designations of equitable parenthood or parenthood by estoppel have been used.

Establishing that a client is an equitable parent is often dependent on a number of factors.

The first is that the biological or adoptive parent consented to, promoted and fostered the client’s parent-like relationship with the child.

The second is that the client and child lived together for a length of time sufficient for the child to have established a dependent and bonded relationship with the client.

Finally, the client will need to show that he or she assumed obligations consistent with parenthood.

• Did the biological or adoptive parent treat the client as a co-parent including statements made to others? The attorney will want to obtain evidence such as a preconception agreement between the parties, written or otherwise and perhaps presence at the birth of the child.

• Did the client assist in choosing caregivers, preschool participation, activities and other duties normally associated with parenthood? In terms of establishing a parent-like relationship, it would be important to gather evidence concerning whether or not the client provided care for the child during all phases of the child’s life.

• Does the child interact with the client as a parent? If available, psychological evidence can help to establish the level at which the child interacts with the client.

It will also be important to establish that the client assumed financial responsibility consistent with what would be expected in a two-parent family. Again, information about how the relationship ended, attempts to repair the relationship and the reason why the biological or adoptive parent is denying custody or access to the child are highly relevant in preparing to defend against the biological or adoptive parent’s claim to be the sole or exclusive parent.

In some instances, the court may find that the biological parent is estopped from denying the status of parent to the client. This may occur when there is a history of attempts by the biological or adoptive parent to seek child support.

In a recent New York case, the biological parent obtained court ordered child support payments from her former lesbian partner, asserting that she was required to pay support as a parent.

When the biological parent then sought to claim exclusive parenthood when the issue of custody and access arose, the court found that she was estopped from doing so.Generally, the hope is that former partners would be able to maintain a positive relationship and each contribute to the child’s life. To that end, mediation or another type of informal dispute resolution process should be explored.

The attorney should however, be prepared to effectively represent the client in litigation by obtaining the types of evidence described here.

Clients who are nonparents or “third parties” and wish to secure rights with respect to children pose challenges for family law attorneys. The two most frequent scenarios involve grandparents and stepparents or a partner in a same-sex relationship after separation.

Virtually all states have statutes that permit grandparents or stepparents to seek some form of visitation rights. The circumstances under which these are granted are generally limited to individuals who fit a specific category and therefore have standing to bring a claim.

Then the seekers of rights must establish that it is in the best interest of the child to continue to have a relationship with them. This burden can be substantial because they must overcome the presumption articulated by the U.S. Supreme Court in Troxel v. Granville in 2000, that parents who are objecting to the visitation request are presumed to be acting in the child’s best interest.

SEEKING CUSTODY

Clients who seek custody of children with whom they have had a relationship face an even higher burden than those merely wishing to have visitation rights.

Again this is because of Supreme Court holdings recognizing the constitutionally protected rights of parents to care, custody and control of their children.

Historically, a nonparent seeking custodial rights was required to show that the parent was unfit or neglectful. In many states, however there has been a shift, allowing third parties to obtain custody when there are extraordinary circumstances.

In these cases, the attorney should begin by obtaining a detailed history of the client’s contact and involvement with the child.

Evidence of financial and emotional support should be sought. The acquiescence of the parent in the formation and maintenance of the relationship could be critical. Information about how the dispute related to custody arose is vital in setting the stage for litigation.

Ultimately the client is going to have to establish why he or she is a better custodian than the child’s parent or why there should be continuing contact with the child over the parent’s objection.

EQUITABLE PARENTHOOD

Cases involving unmarried same-sex partners who have children together involve a different set of issues. In most of these cases, the nonbiological caregiver is asserting a claim to be recognized as a parent on equal footing with the biological or adoptive parent, not seeking to be declared a third party entitled to visitation or custody.

Clients in this category have had success under a number of theories. Because they generally do not enjoy the designation of legal parent, which generally flows either from marriage, biology or adoption, they have often had to seek equitable relief. Broad designations of equitable parenthood or parenthood by estoppel have been used.

Establishing that a client is an equitable parent is often dependent on a number of factors.

The first is that the biological or adoptive parent consented to, promoted and fostered the client’s parent-like relationship with the child.

The second is that the client and child lived together for a length of time sufficient for the child to have established a dependent and bonded relationship with the client.

Finally, the client will need to show that he or she assumed obligations consistent with parenthood.

• Did the biological or adoptive parent treat the client as a co-parent including statements made to others? The attorney will want to obtain evidence such as a preconception agreement between the parties, written or otherwise and perhaps presence at the birth of the child.

• Did the client assist in choosing caregivers, preschool participation, activities and other duties normally associated with parenthood? In terms of establishing a parent-like relationship, it would be important to gather evidence concerning whether or not the client provided care for the child during all phases of the child’s life.

• Does the child interact with the client as a parent? If available, psychological evidence can help to establish the level at which the child interacts with the client.

It will also be important to establish that the client assumed financial responsibility consistent with what would be expected in a two-parent family. Again, information about how the relationship ended, attempts to repair the relationship and the reason why the biological or adoptive parent is denying custody or access to the child are highly relevant in preparing to defend against the biological or adoptive parent’s claim to be the sole or exclusive parent.

In some instances, the court may find that the biological parent is estopped from denying the status of parent to the client. This may occur when there is a history of attempts by the biological or adoptive parent to seek child support.

In a recent New York case, the biological parent obtained court ordered child support payments from her former lesbian partner, asserting that she was required to pay support as a parent.

When the biological parent then sought to claim exclusive parenthood when the issue of custody and access arose, the court found that she was estopped from doing so.Generally, the hope is that former partners would be able to maintain a positive relationship and each contribute to the child’s life. To that end, mediation or another type of informal dispute resolution process should be explored.

The attorney should however, be prepared to effectively represent the client in litigation by obtaining the types of evidence described here.