Non-Parent Custody is Possible in Extraordinary Circumstances
Although a natural parent has a built-in advantage, a non-parent may seek custody if extraordinary circumstances exist. Courts have held that examples of behaviors that may, in the aggregate, rise to the level of extraordinary circumstances include allowing the children to live in squalor, failing to address serious substance abuse or mental health issues, instability in the parent’s housing or employment situation…and other similar behaviors that reflect the parent’s overall pattern of placing his/her own interests and personal relationships ahead of the child.
A specific case where extraordinary circumstances existed resulted when the natural father and his live-in girlfriend “habitually used and sold an assortment of illegal drugs” and that his habitual drug use, “seriously impairs his ability to function as a parent and, consequently that ‘extraordinary circumstances’ exist”.
Another set of facts that constituted extraordinary circumstances involved a mother who had admitted to a long history of alcohol abuse and her “consistent attempts to minimize her behavior”. Also, the “mother’s demonstrated irresponsibility and failure to plan for the child’s future rose to the level of persistent neglect” to warrant the grandmother to have standing to seek custody of the subject child.
A different fact pattern involved a maternal aunt and paternal grandmother (each were guardians of one child) seeking custody against both of the natural parents of two (2) children. The Court stated that “despite her completion of rehabilitation for substance abuse, a parenting class, and related counseling, the mother had not demonstrated an adequate appreciation of her parental duties and responsibilities to the extent necessary for the return of the children to her custody”. The Court further held that the mother “had made no attempt to secure gainful employment or a means of transportation, and …she intended to seek government assistance in order to support her family”.
Extraordinary circumstances have existed when the father “ignored” the child’s chronic health and dental issues, and “did not participate in obtaining professional case for these issues”, “would ignore the child and any parenting responsibilities”, “was verbally and physically abusive of the mother when the child was present”, and “abused various drugs”.
In finding for a non-parent in another case, the Court noted it was noted that the biological parent’s “lifestyle could fairly be characterized as unstable, chaotic and generally not conducive to effectively parenting children”. The mother “lived in a series of residences, during which time she shared her living quarters with any number of men – one of whom was a former heroin user”. “The level of instability existing in the mother’s life, as evidenced by her sporadic employment and precarious housing situation, is indicative of the mother’s overall pattern of placing her own interests and personal relationships ahead of her children…and demonstrates a marked lack of parental responsibility”.
Since the burden of proof is on the non-parent seeking custody, an experienced attorney who has handled such cases must be consulted.
