Are Non-Parent Or Grandparent Custody Petitions Temporary?

If two parents agree for a grandparent or non-parent should have custody, this is a “guardianship” type of circumstance. However, the guardianship of the child lasts only as long as the consent of the parents because guardianship of a minor child to a non-parent is conditional from parental consent because the parental presumption has not been rebutted at that point and parents can consent a guardianship. In fact, there is a case that came out in 2003, In Re VKS. In that case, the Utah Court of Appeals emphasized that when parents’ consent to the appointment of the guardian, then that parent’s custody is temporarily suspended. (There is also statute that allows for emergency guardians or temporary guardians; and for guardianship, not to exceed 30 days.)

If the parent later petitions to terminate the guardianship, then the court is required to grant the petition to terminate the guardianship because the original grounds for it – that is, the consent of the parent – has now evaporated unless the parent is found to have abused or neglected or abandoned the child by the juvenile court or another court. Therefore, guardianship can temporarily be given by the parents, but in that case, they retain the parental presumption and can revoke that guardianship.

However, if the parental presumption has been rebutted (see other article on the parental presumption and how to challenge it) and custody has been given to a non-parent by the court, custody is different in guardianship and that custody is a more permanent.

Their custody can be changed if there is an agreement between the parties for it to change, or if someone files a petition demonstrating a significant and material change in circumstances since the date of the custody decree and showing that it’s in the child’s best interest. In determining whether custody with a non-parent or with the parent is in the child’s best interest, I would refer you to the other articles on this site regarding custody factors. Once the parental presumption has been rebutted, generally the same factors that are considered in a divorce are also considered between the parent and the non-parent and those custody factors I’ve discussed at length previously.

The most frequent issues that result in a petition by a non-parent or a grandparent for custody that arise are substance abuse, neglect, abuse, domestic violence and mental health issues. There are other circumstances as well but those are the most frequent that come up.

What Is The Best Advice For Parents In a Non-Parent or Grandparent Custody Petition?

The number one piece of advice I would give them is spend as much with your kids as possible even if it is supervised visits; do not skip visits, do not skip phone calls. Write letters, write cards, send birthday presents, do whatever they can to maintain the relationship with the child.

Number two, clean up whatever issues may be leading to the impression that they’re unfit, if it’s a substance abuse problem, get into treatment, starting having themselves regularly drug tested and randomly drug tested so that they can establish evidence of present fitness. They might even go to DCFS and engage in voluntary services.

DCFS actually might help pay for some of their treatments or classes or whatever they have to do. If it’s mental health issues they are dealing with, be consistent with medications and treatments. Maintain contact and get “through” the problem, not “around” it. If there is a genuine problem with mental health issues, substance abuse issues, or domestic violence, get the treatment that is needed and instead of continuing to avoid the problem.

I am not saying that that parent should go out and start making sweeping admissions of everything they’ve done wrong. What I’m saying is that if there is a genuine problem, trying to hide the problem rather than remedy it will be a short-term gain and a long-term loss. Courts are much more sympathetic to parents who acknowledge the problems that they have and take the steps necessary to remedy it. But those interventions, treatments, therapies need to happen quickly because a child’s development waits for no one. The child is on a developmental timetable and very often, the timetable necessary for the parents to remedy their problems take longer than the timeframe that the child’s psychological development requires.

For more information on Permanency of Non-Parent Custody, an Initial consultation is your next best step. Contact Us online or call us to arrange a consultation at (801) 616-3301 today.

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