What is the Fit Parent Presumption in Non-Parent Custody Disputes?

Custody disputes are inherently emotionally charged situations and can be even more so when non-parent custody is part of the equation. The fit parent presumption in a custody case is that if a biological parent of the child is in the position to be a fit caretaker, custody goes to them unless another party can show evidence that doing so is not in the best interest of the child. Custody is an extremely important matter that can go on to affect a child for the rest of their lives. If there is any question of the child’s best interest, it is important to involve a custody lawyer in the process. In some states, a custody case cannot be conducted without the help of an attorney.

By law, the “best interest of the child” should be the deciding factor in any custody case.

This can be a vague term but includes many specific elements of a child’s relationship with the parent as well as the parent’s lifestyle and the material benefits they can offer a child. Oftentimes the primary caretaker of the child is given special consideration in custody cases, regardless of whether they are a parent or non-parent, because the child often shares an important bond with this person. That being said, if the primary caretaker is a non-parent and a parent is fit or proves that they have become fit, the court may still award the fit parent custody under the fit parent presumption principle.

There are many ways a court can decide if a parent is considered “fit” or not.

While evidence such as criminal records, photographs of abuse, and similar tangible evidence may be presented to prove that a parent is not fit for custody, even something as simple as testimonies from the people who know the parent in question may be considered as an evaluation of a parent’s “fit”ness. If it is determined that neither biological parent is fit, a non-parent caretaker may be considered for custody.

Factors of consideration in deciding whether a biological parent is fit for custody include but are not limited to the following:

• Can the parent provide for the emotional and mental needs of the child in both the present and future?
• Can the parent provide for the physical and financial needs of the child in both the present and future?
• Is the home of the proposed custodial parent reliably stable?
• Is there any indication that something is amiss in the parent-child relationship?
• Does the proposed custodial parent have a supportive extended family to help nurture the child?
• What does the proposed custodial parent’s financial situation look like?
• What does the proposed custodial parent’s job look like? Is it stable? Does their schedule allow for the care of a child?
• Has the proposed custodial parent displayed basic parental abilities?

This is an extremely basic list of questions that a judge will consider when deciding between awarding custody of a child to a non-parent or parent. As a rule of thumb, if the biological parent passes the above questions in addition to any others the judge or opposing counsel asks, the biological parent would be considered fit and automatically awarded custody. However, if there is a question of the biological parent being fit for custody, a non-parent individual can begin to be considered and undergo the same vetting process.

To learn more about the fit parent presumption or for help with a custody case, reach out to a family law attorney.