Are Non-Parents Ever Eligible for Custody?

Posted on in Child Custody

Barrington family law attorney, non-parents and custody, children and divorce, custody rights, child custody rightsParents are traditionally, legally and historically associated as the primary caregivers in their child’s life. This standard is supported by the fact that society and the law presume parents to be the most fit individuals to provide for their child’s needs and to make decisions in their child’s best interests. This paradigm works well in the vast majority of families, including those in which child custody is shared following a divorce or separation. However, in a minority of families, one or both parents are unavailable to provide adequate care, usually due to illness, substance abuse, or criminal issues. These children still require care, and if the living situation at home is unsafe or unstable, then alternate arrangements must be found.

The question that routinely arises in these situations is the long-term custody rights of non-parents to care for these children. In the worst case, these children end up — at least temporarily — in foster homes or State shelters. In fact, a recent article about Illinois’ handling of children unable to live with their parents reveals hundreds suffered unnecessary weeks and months in State psychiatric facilities, even though cleared for release, because there was nowhere for these children to go. Children should always have the benefit of growing up in a supportive environment.

Who Can Request Custody Rights

As noted above, a strong presumption exists that parents are fit to care for their children, until proven otherwise or until the parents voluntarily relinquish custody. Further, Courts are typically reluctant to consider giving custody rights to non-parents if consent is not provided, and will require substantial and compelling evidence that the child’s best interests can only be protected outside of a parent’s care.

Basically, unless both parents consent to custody by another adult or the non-parent falls into one of a few categories that signify he or she no longer has the desire or capacity to care for the child, a non-parent cannot petition a Court for custody rights. Additionally, under Illinois family law, grandparents and step-parents are the only parties directly authorized to ask for parental responsibilities, though other Illinois statutes allow additional adults to ask for authority similar to parental responsibilities.


The circumstances under which a grandparent may petition for rights, which, as a starting point, requires one parent be deceased, include the surviving parent:

  • has been absent from the home for at least one month, and his or her whereabouts are unknown;
  • is incarcerated; or
  • was convicted of specific criminal offenses related to sex crimes and bodily harm, or violated a domestic violence protective order.
  • was convicted of specific criminal offenses related to sex crimes and bodily harm, or violated a domestic violence protective order.

Step-parents follow a somewhat different trajectory; however, they can petition for custody rights as listed above if their spouse is the deceased parent. Otherwise, the law allows them the ability to request parental responsibilities if:

  • The parent holding the majority of the parenting is deceased or disabled and is unable to provide adequate care;

  • The stepparent cared for, controlled, and provided for the child’s welfare prior to filing a custody petition;

  • The child wants to live with the stepparent; and

  • The best interests of the child indicate living with the stepparent is necessary.

The overarching issue in most these cases is whether the child is in the care of another adult. If the child is still in the parent’s care and receiving sufficient supervision and attention, a non-parent will not be able to ask for custody. Obtaining parental responsibilities as a non-parent is not easily accomplished, and the services of an experienced family law attorney will be needed to give an interested party the best chance at success.

Speak with an Illinois Family Law Attorney

Child custody matters tend to quickly become complicated and ripe for explosive disputes. Talented Barrington family law attorney Nicholas W. Richardson, P.C. understands how important these cases are, and will work to obtain a satisfactory outcome with the minimum amount of contentious disagreement. Contact the office for a free initial consultation.



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