Typically, “custody battles” involve a mom and a dad, fighting over one or more of their children. In the child custody case, Mom tries to prove that dad is unfit to care for the children, or at the very least, that she is more fit to care for the children than dad, with dad trying to prove the opposite. When should third parties get child custody? What happens if neither parent is fit to care for the child? This can happen for a variety of reasons, such as drug or alcohol abuse, or other forms of abuse and neglect by the parents. Such situations are arising more frequently all the time, causing grandparents, relatives, or other concerned individuals to become parties in “custody battles.” Biological parents are the natural guardians of their children, but if the biological parents are unfit, unwilling or unable to fulfil this role, it then becomes necessary for a non-parent to take legal steps to be appointed guardian or custodian of the child.

The terms “guardianship” and “third-party custody” are often used interchangeably, but there are some differences between the two concepts.

Guardianships:
1. Filed in Probate Court.
2. Parents are unfit, unwilling or unable to care for the child.
3. Requires an annual reporting to the Probate Court as to the well-being of the child.
4. Remains in place unless a parent petitions for the guardianship to be set aside. The court must then make a finding that the biological parent is now fit, willing and able to care for the child, and it is in the best interests of the child that the guardianship be set aside.

Third-party custody:
1. Filed in Family Court.
2. May only be sought when a divorce or other custody proceeding is already pending.
3. “[fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][E]ach parent is unfit, unsuitable or unable to be custodian, or the welfare of the child requires, and it is in the best interests of the child” to be placed in the potential custodian’s care.” (Mo. Rev. Stat. § 452.375.5)
4. Does not require annual reporting to the Court.
5. Remains in effect until modified by the Family Court. Modification of third-party custody requires showing that a change in circumstances of the child or his custodian has occurred and that a modification is necessary to serve the best interests of the child.

It is important to note that neither process terminates the parental rights of the biological parents.

In both guardianships and third-party custody, the court’s primary consideration is the best interests of the child. The family law attorneys of Kennedy, Kennedy, Robbins, & Yarbro are experienced in both guardianships and third-party custody matters, so please contact us if we can assist you in these matters.[/fusion_builder_column][/fusion_builder_row][/fusion_builder_container]