Children, Kin and Court: Designing Third Party Custody Policy to Protect Children, Third Parties and Parents

72 Pages Posted: 16 Apr 2008 Last revised: 17 Jun 2009

See all articles by Josh Gupta-Kagan

Josh Gupta-Kagan

University of South Carolina School of Law


Millions of American children are primarily raised by people other than their parents, and millions more will be raised by third parties for some period of their childhood. In most such situations, informal arrangements negotiated by family members provide for these kinship networks to care for children effectively. But many cases require some formal legal arrangement. To enable third parties to obtain necessary services and benefits for children in their care whose parents are absent and to protect children from an abusive or neglectful parent, third parties need the opportunity to seek formal legal custody. States currently have widely varying means of adjudicating child custody disputes between parents and third parties. This article argues that states should enact statutes that follow three primary points. First, due to the wide range of situations, described in the article, in which a third party custody order may be necessary, states should permit a broad set of individuals to seek custody. Concerns that broad standing provisions would lead to a flood of meritless lawsuits are not borne out by actual data in states that have had nearly unlimited standing. Second, recognizing the constitutional primacy of the parent-child relationship, states must hold third parties to a high substantive standard, and require them to prove that parental custody would harm the child in some way. Any lesser standard - such as a best interests of the child standard applied in some states - insufficiently protects relationships between parents and children. Third, recognizing that the core parental right of the care, custody and control of a child is at stake, states should generally hold third parties to a clear and convincing burden of proof. Most states apply a preponderance burden or have not specified a burden. One exception should apply: When a third party has acted as a parent for a significant time and a child's birth parent has not done so, then that parent's constitutional rights are diminished, society's interest in maintaining the long-term bond between the parent and third party is enhanced, and a lower burden of proof should apply.

Keywords: Domestic Relations, Constitutional Law, Children, Custody, Third Parties

Suggested Citation

Gupta-Kagan, Josh, Children, Kin and Court: Designing Third Party Custody Policy to Protect Children, Third Parties and Parents. New York University Journal of Legislation and Public Policy, Vol. 12, p. 43, 2008, Available at SSRN:

Josh Gupta-Kagan (Contact Author)

University of South Carolina School of Law ( email )

1525 Senate Street
Columbia, SC 29208
United States

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