Factors Considered in a Third Party Custody Case
If you are seeking custody of a child, who is not your biological child, the court gives preference to the biological parents. This guilde sets forth the factors that the court will consider in such an action.
Two Step ProcessThe Court will first have to determine whether the natural parent is unfit or whether extraordinary circumstances exist. This is step one. If the Court finds in the affirmative on either of these considerations, then the court will consider the factors necessary to determine the best interests of the child. This is step two.
Step One - Unfitness of Natural Parent or Existence of Extraordinary CircumstancesIn the case of McDermott v. Dougherty, 385 Md. 320 (2005), the Court of Appeals of Maryland set forth the factors for considering whether it is proper to consider awarding custody of a minor child to a third party (i.e. someone who is not the child's biological child). In that case, the Court stated that a trial court must first consider whether the natural parents are unfit or whether extraordinary circumstances exist. To determine whether extraordinary circumstances exist, the Court stated that a trial court must consider seven factors. Those factors are: (1) Length of time the child has been away from the biological parent; (2) Age of the child when care was assumed by third party; (3) Possible emotional effect on the child of a change of custody; (4) Period of time which elapsed before the parent sought to reclaim the child; (5) Nature and strength of the ties between the child and the third party custodian; (6) Intensity and genuineness of parent's desire to have the child; and (7) Stability and certainty as to the child's future in the custody of the parent. If after making these considerations, the trial court finds that the natural parents are unfit or that extraordinary circumstances exist, the trial court moves on to the second step.
Step Two - Determination of the Best Interests of the ChildOnce it has found that either the natural parents are unfit or that extraordinary circumstances exist, the trial court must consider the ten factors necessary to determine the physical custodial arrangement that is in the best interests of the child. In Montgomery County DSS v. Sanders, 38 Md. App. 406, 381 A.2d 1154 (1978), the Court of Special Appeals of Maryland stated that the factors to be considered are: (1) Fitness of the parents; (2) Character and reputation of the parties; (3) Desire of the natural parents and agreements between the parties; (4) Potentiality of maintaining natural family relations; (5) Preference of the child; (6) Material opportunities affecting the future life of the child; (7) Age, health and sex of the child; (8) Residences of parents and opportunity for visitation; (9) Length of separation from the natural parents; and (10) Prior voluntary abandonment or surrender. No one of these factors is be given greater importance than any other. Further, the trial court can consider any additional or other facts or factors that it thinks are relevant to the matter.
DeterminationAfter considering all of the factors and any other facts or factors that the court thinks are relevant, the court will then determine the custodial arrangment that it finds is in the best interests of the child. This may include visitation with the biological parents.
If you are facing such a situtation, you should seek the assistance of a lawyer who has experience in this area of the law.