Non-Biological Care-Givers: When Non-Parents Help Raise Children

October 29, 2009

By: Barry Armata

Connecticut Law Regarding Parents vs. Non-Parents

Our society has come to view the "ideal" family unit as being made up of a mom and dad who are married, and who are loving, devoted, and financially able and willing to care for their children. With the burdens of life and reality, the "ideal" family unit does not always exist. Non-traditional families seem to be more of the "norm" these days, and many of them are successfully raising wonderful children. It is often the case that biological parents are assisted by other family members or friends in raising their children, and this is often beneficial for everyone involved. But what happens if there is dispute between a parent and a non-parent, such as a grandparent, who has had a significant role in the raising of the child? Under Connecticut law there is a presumption that the biological parent is better situated to have custody and decision-making authority.

Connecticut General Statute Sec. 46b-56b. Presumption re best interest of child to be in custody of parent. In any dispute as to the custody of a minor child involving a parent and a nonparent, there shall be a presumption that it is in the best interest of the child to be in the custody of the parent, which presumption may be rebutted by showing that it would be detrimental to the child to permit the parent to have custody.

This idea has been affirmed and held to be a Constitutional right by both the United States Supreme Court in Troxel v. Granville, 530 U.S. 57 (2000) and the Connecticut Supreme Court in the case of Roth vs. Weston, 259 Conn. 202 (2002), cases where biological parents did not want other family members to have access to the children. The U.S. Supreme Court said that courts should not rush to second-guess biological parents' decisions about the child's best interest because the U.S. Constitution does not allow states to "infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a 'better' decision could be made." Likewise, the Connecticut Supreme Court in Roth wrote that "The family entity is the core foundation of modern civilization." Because parents have a "constitutionally protected interest" to "raise their children without interference," courts should be very reluctant to decide that someone other than a biological parent is a better person to have custody and decision-making authority over the child. While there are some exceptions where the court will decide another person is better suited for this role, generally, a parent's choices will not be ignored, even if they do not serve and are not motivated by the child's best interests.

Thus, under Connecticut law, in order for a non-biological care-giver such as a grandparent or aunt or uncle to challenge the decisions of a biological custodial parent, they must show that they have a "parent-childlike relationship with the minor child and that to deny that relationship would cause irreparable harm to the child." These are very high and difficult standards to meet.

Connecticut Guardianship

Sometimes, when the other biological parent is not in the picture or limited as to their involvement with the child, an extended family member may act like a parent to the child in the event the biological custodial parent is hurt or injured. In such cases a Guardianship may be in order. When a guardian is appointed, the court has decided to give a non-biological care giver the authority to make major decisions affecting the minor's education and welfare, including, but not limited to, consent determinations regarding marriage, enlistment in the armed forces, major medical, psychiatric or surgical treatment, and to oversee the child's care and control. If the biological parent seeks to name another person as Guardian, they may do so in their will or by other writing appoint another person or persons as guardian or co-guardians of the minor child. A person can be named as guardian of the person, meaning they are in charge of the day-to-day affairs of the child, or guardian of the estate, meaning they are in charge of the child's financial affairs. See Connecticut General Statue 45a-596(a). But, if a child is twelve years of age or older, they can seek a substitution guardian of either the person or the estate. Connecticut General Statue 45a-596(b). In all these matters, the court is still guided by the best interest of the child.

So what do you do if you find yourself and your family dealing with these issues? First, you should consult an experienced family lawyer to help you determine what is in the best interest of the child and what evidence you have to present to the court to support that claim. Whether you're the biological or non-biological caregiver, the attorneys at Brown Paindiris & Scott have experience with these important and often delicate issues.

With over 60 years of combined experience, the firm's attorneys practicing divorce and family law have the ability to handle difficult issues and to craft creative solutions to meet the needs of our clients. Our attorneys and staff work as a team to devote the time and individual attention to each matter that it deserves because no two cases are exactly alike. Brown Paindiris & Scott maintains law offices in Hartford, Glastonbury, East Hampton, and Bristol, and our attorneys would be happy to meet with you at any of these convenient locations.