Child Custody Options for Relatives

I’ve seen the following scenario hundreds of times in my practice throughout the years. A potential client has been caring for their grandchild, or niece or nephew for an extended period. The child’s parents have stopped checking in to see how the child is doing, and stopped financially providing the child. If the parents do call, it will be only to ask for money. If the client refuses, the parents threaten to take the child back.

Often these unstable parents are abusing drugs or are habitual criminals, and these potential clients are concerned that the child’s unstable parents will swoop back in unannounced and take the child back, potentially placing the child in imminent harm.

In general, the client has four options:

1. File a petition for temporary custody under Chapter 751.

2. File a petition for concurrent custody under Chapter 751.

3. File a petition for dependency under Chapter 39.

4. File a petition for adoption under Chapter 63.

Which option is the most viable depends on the length of time the child has been residing with the client, how long and to what extent the parents have been absent, whether the parents have abused, abandoned or neglected the child, the goal of the client, and the level of permanency desired by the client.

For example, if the client’s goal is to keep the child safe while at the same time rehabilitating the parents, a dependency action may be the best route. A private dependency action can be costly, but it affords the parents a year to take classes and engage in therapy, among other possible remedial measures, so that the parents can become stable enough to care for the child again.

If the client’s goal is to provide permanent stability for the child, and it appears the parents have no intention of becoming fit parents, adoption may be the best option. The cost for adopting a related child will hinge upon whether the parents consent, whether or not the parents’ locations are known, etc. Obviously, the parents’ consents to the adoption will greatly reduce legal fees and costs. If their location is unknown, a diligent search and notice by publication will add to the cost.

The term “temporary custody” is a bit of misnomer. If the client is able to obtain temporary custody under Chapter 751, that custody may remain in place until the child turns 18 if the parents never petition to terminate the custody. In the case of temporary custody, the clients don’t become the child’s legal parents, but they do become the child’s legal custodians and are authorized to enroll the child in school, obtain medical treatment and records, and do anything necessary for the well-being of the child.

The option of concurrent custody is often more palatable to parents who would balk at giving custody of the child to the client. Concurrent custody means that the parents and the client all have legal custody of the child, and none of them can prevent the others from exercising custody. This is a path-of-least-resistance option and is appropriate in some circumstances, especially when the parent hasn’t necessarily abandoned the child, but needs the client to care for the child on a temporary basis. At least the client has legal recourse if the parent comes in unannounced and takes the child without the client’s consent.

Again, this article is not be construed as legal advice. Every case is different. If you are the relative of a child and find yourself in circumstances similar to these, you should consult with an attorney as soon as possible to determine what you can do to protect the child you’re caring for.

The contents of this website are intended for informational purposes only, and not to be construed as legal advice. Please consult with an attorney of your own choosing to determine your legal rights and obligations.

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