Grandparents Seeking Court-ordered Custody Must Show Exceptional Circumstances

Two years ago, I wrote a blog containing advice to grandparents seeking visitation rights through the courts. Successfully litigating a petition for grandparent custody is a whole other story.  The two types of actions differ in that the harm alleged in a third-party visitation petition results from the child’s lack of access to the petitioner, while the harm alleged in a custody proceeding results from the fundamental nature of the parent-child relationship, which may be emotionally, psychologically or physically damaging to the child.  In seeking an award of custody, grandparents (or other third parties) need to know that there is a statutory presumption in favor of parental custody.

Three statutes govern third party custody determinations.  Conn. Gen. Stat. §§46b-56(a) provides that, in making or modifying an order of custody, the court may award custody to “either parent or to a third party”.  Conn. Gen. Stat. §§46b-57 provides that a court “[MAY] award full or partial custody, care, education, and visitation rights of such child to any such third party upon such conditions and limitations as it deems equitable.” Conn. Gen. Stat. §§ 46b-56b provides for the presumption that it is in the best interest of the child to be in the custody of their parents, rather than non-parents, UNLESS “it would be detrimental to the child to permit the parent to have custody.”   

The statutory presumption in favor of parental custody can be rebutted only in exceptional circumstances.  Judges may not award custody based on their subjective determination as to what is in the child’s best interest or the judge’s personal or lifestyle preferences.  The burden is on the applicant to show by a fair preponderance of the evidence that he or she has a parent-like relationship with the child(ren) in question; it would be damaging, injurious or harmful for the child to remain with his or her parents; and, that third-party custody is in the best interests of the child(ren).  The court has indicated “damaging, injurious or harmful” to mean that the harm is not the temporary kind resulting from the stress of the divorce proceeding itself but significant harm arising from a pattern of dysfunctional behavior that had developed between the parent and the child over a period of time. 

Finally, grandparents, stepparents, or other third parties who wish to petition for custody may not initiate custody proceedings but are entitled to seek to intervene in actions which are already pending.

If you are a grandparent or a third-party believing there are exceptional circumstances requiring you to seek custody of a child who is not biologically your own,  please call for a consultation. We can assist you in assessing the likelihood of prevailing in your case.