What Is A Non-Parent Or Grandparent Custody Petition?

The Parental Presumption

In order to understand a petition for custody by a non-parent or a grandparent, you first have to understand the parental presumption. It is presumed in the law that the child is better off being raised by their legally established parent than by anyone else. That right, both for the child and for the parent, is constitutionally protected. That presumption that a child is better off with their parent is known as the “parental presumption.” However, the parental presumption can be challenged or rebutted. Once the parental presumption has been rebutted, a non-parent (such as a grandparent, adult sibling, uncle/aunt, or even a family friend) is on equal footing with the parent for custody. The only question left to determine is what in the child’s best interest: to be with the natural parent or to be with the legal parent, or to be with the non-parent that just successfully rebutted the parental presumption.

How To Challenge Or “Rebut” The Parental Presumption?

How to rebut the parental presumption has shifted over the years. For many years in the state of Utah, the controlling case for rebutting the parental presumption in district court (which is Utah’s court of general jurisdiction, and not to be confused with juvenile court) was Hutchison v. Hutchison, which was decided in 1982. At that time, in order to challenge the parental presumption in district court, one had to establish that a particular parent lacked three characteristics that give rise to this parental presumption: one, that no strong mutual bond exists between the parent and the child; two, that the parent has not demonstrated a willingness to sacrifice his or her own interest for the child’s welfare; and three, that the parent lacks sympathy for and understanding of the child that is characteristic of parents generally.

Then there was a case in 1998 called In re JMV that said that once a juvenile court has made a finding of abuse or neglect or dependency, then the Hutchison factors don’t have to be satisfied anymore in order to rebut the parental possession because “The law does not presume that it is in a child’s best interest to be in the custody of the child’s parent when the parent has been found by clear and convincing evidence to have neglected or abused the child” or when the child is “dependent.”

What does dependent mean? Dependent means essentially that the child is dependent on the state because the child has been neglected or abused or is ungovernable through no fault of the parent. Let’s suppose, for example, that the child is so rebellious or has such special needs that a parent just can’t handle the child and any reasonable parent wouldn’t be able to handle the child; then the child is “dependent.”

However, for the purposes of this discussion, I’ll focus on abuse and neglect, rather than dependency. To recap, 1982, it the “Hutchison Factors” was the way to do rebut the parental presumption. Then in 1988, it was established more clearly that if you “find abuse or neglect,” then the parental presumption was rebutted.

The “Custody And Visitation For Persions Other Than Parents Act”

More recently, within the last 10 years, the Utah legislature enacted the “Custody and Visitation for Persons Other Than Parents Act.” That can be found at Utah code annotated 30-5a-101, et. seq. The main substance of it is contained in sub-section 103. This statute stands for the idea that the parental presumption can be rebutted, and the court can grant custodial or visitation rights to a person other than the parent who, by clear and convincing evidence, establishes each of the following factors:

  • The person has intentionally assumed the role and obligations of a parent;
  • The person and the child have formed an emotional bond and created a parent-child type relationship.
  • The person contributed emotionally or financially to the child’s well-being;
  • Assumption of the parental role is not the result of a financially compensated surrogate care arrangement (i.e., they are not a paid nanny”);
  • Continuation of the relationship between the person and the child would be in the child’s best interest;
  • Loss or cessation of the relationship between the person and the child would be detrimental to the child; and
  • The parent is absent, or is found by a court to have abused or neglected the child.

In juvenile court, you can rebut the parental presumption by showing abuse or neglect. If you file a petition in district court though, you must establish not only abuse or neglect or absence, but these other factors (also. That said, non-parents who seek custody of a child often has established those factors already and the most difficult one to establish is abuse or neglect. Once again, a non-parent can file a petition either in juvenile court under a different statute based on abuse or neglect, or they can file a petition for custody under the custody and visitation for persons other than parents act in district court also.

You have to rebut the parental presumption as to both parents, not just one, because if the parental presumption is rebutted as to one parent and not as for the other, then the court will automatically presume that the child is better off with the parent whose parental presumption remains intact. So unless that other parent is willing to concede custody, then you have to rebut the parental presumption as to both.

Pros And Cons To Filing Your Petition In Juvenile Court Vs. District Court

So what are the pros and cons of filing a petition for non-parent custody in juvenile court versus district court?

The advantages for filing in juvenile court is that juvenile court judges are much more accustomed to terminating parental rights than are district court judges. The other potential advantage to being in juvenile court is that the juvenile court’s judge may rope in the Division of Child and Family Services (DCFS) or a Guardian ad Litem, an attorney for the child. That can be (but is not always) an advantage and it can also be a disadvantage. It can be an advantage essentially if those professionals DCFS, and the guardian ad litem supports your petition.

Sometimes DCFS or the Guardian ad Litem will file motions or gather evidence the court that you would normally have to do on your own. The problem is, if they believe that someone else should have custody, then they’ll be actively working against your petition, and you won’t know very often going in advance which is the way they’re going to go.

Another distinct disadvantage to filing a petition in juvenile court is that the juvenile court judge is likely to appoint a court-appointed attorney to the parent(s). Depending on the case, having a DCFS or a guardian ad litem involved, if they are opposing the petition that would be a detrimental. Again, the court can also appoint an attorney to represent the parent at no cost (usually) while you are required to pay for your own attorney.

However, in district court the judge will not appoint a free attorney to the parent(s). And it may be an advantage or that DCFS (Division of Child & Family Services) or a guardian ad litem is not involved, competing with your petition. If you file in district court, it’s unlikely that those two entities would be involved, which if a petitioner wishes to minimize the number of surprises in their case, they might consider advantage. The other advantage is that for petition that’s filed in district court under Utah Code 30-5a-101 et. seq., the custody and visitation for persons other than parents act, the court will not appoint an attorney to the other side, to the parent. Why not? Because the government is not an actor. It’s not the government bringing the petition; it’s not DCFS and the attorney general’s office filing a petition. If it was the government, then likely the court would have to appoint a court-appointed attorney to an indigent respondent. But in district court, it’s always a private party that brings the petition, and there is no statute allowing for a court-appointed attorney because there is no right to counsel in a civil case, where the government is not an actor.

Can The “Parental Presumption” Ever Be Ressurected?

Once the parental presumption has been rebutted or challenged, can it ever be brought back? The answer is yes. A parent can regain the parental presumption if, after having lost it, they regain custody legally.

For example, what if both parents’ parental presumptions have been rebutted, one parent dies, the other parent cleans up their act, changes the underlying causes of the abuse or neglect, and a grandparent or non-parent who had custody of the child stipulates or agrees to give custody back to the parent. They reach an agreement, the court signs the order, and the parent now has custody. At this point the parental presumption has snapped back into place for that parent. That is a general overview of the parental presumption and how it could be challenged and how a non-parent or a grandparent can obtain custody, either in juvenile court or in district court.

For more information on Non-Parent Or Grandparent Custody, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (801) 616-3301 today.

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*Child Welfare Law Specialist Nat’l Assoc. of Counsel for Children