Non-Parental Rights

Non-Parental Custody

If you are a relative of a child by blood or marriage, you may be interested in what your rights are pertaining to that child. Perhaps you feel that the parents are not caring for the child properly and you want to intervene. Or you may simply want a relationship with the child and for whatever reason, the parents are restricting your access to the child. Below is Utah Code when it comes to non-parent relatives and their rights to children.

(1) In accordance with Section 62A-4a-201, it is the public policy of this state that parents retain the fundamental right and duty to exercise primary control over the care, supervision, upbringing, and education of their children. There is a rebuttable presumption that a parent’s decisions are in the child’s best interests.

This simply means that the court will always assume that it is in the best interest of the child to remain in custody of his or her biological parents.

However, the statute also states that there is a “rebuttable presumption.” This means that if someone comes forward with clear and convincing evidence that something else is in the best interest of the child, the court can take another look at the situation.

So, what would you need to bring forward to challenge the court’s basic assumption that the parents are the best people to care for and make decisions about their children? Utah law makes it very clear.

(2) A court may find the presumption in Subsection (1) rebutted and grant custodial or visitation rights to a person other than a parent who, by clear and convincing evidence, has established all of the following:

Notice the word “all” in that sentence. That means all of the requirements must be met and proved for you to have a real case. Also notice that it says clear and convincing evidence. Know that you are not on equal footing with the parents when you step into the courtroom. In a divorce case, both the mother and the father are considered equally. However, if you are not one of the parents you are already at a disadvantage before anything happens. You must have a very good reason to be pursuing custody or visitation rights and you must be able to prove all of the following.

(a) the person has intentionally assumed the role and obligations of a parent;
(b) the person and the child have formed an emotional bond and created a parent-child type relationship;
(c) the person contributed emotionally or financially to the child’s well being;
(d) assumption of the parental role is not the result of a financially compensated surrogate care arrangement;
(e) continuation of the relationship between the person and the child would be in the child’s best interests;
(f) loss or cessation of the relationship between the person and the child would be detrimental to the child; and
(g) the parent:
(i) is absent; or
(ii) is found by a court to have abused or neglected the child.

If, after reading the requirements, you believe that you have a solid case, reach out to an experienced family law attorney. They can help you fight for what you feel is best for the child you are concerned about.

Grandparent Visitation

Utah State Code 30-5-2 deals specifically with visitation rights of grandparents. It states:

Grandparents have standing to bring an action in district court by petition, requesting visitation in accordance with the provisions and requirements of this section. Grandparents may also file a petition for visitation rights in a pending divorce proceeding or other proceeding involving custody and visitation issues.

Again, there will always be a presumption that the parent’s decision is in the best interest of the child. However, getting legal visitation rights is much easier than getting custody of the child you are concerned about.

There is a rebuttable presumption that a parent’s decision with regard to grandparent visitation is in the grandchild’s best interests. However, the court may override the parent’s decision and grant the petitioner reasonable rights of visitation if the court finds that the petitioner has rebutted the presumption based upon factors which the court considers to be relevant, such as whether:

(a) the petitioner is a fit and proper person to have visitation with the grandchild;
(b) visitation with the grandchild has been denied or unreasonably limited;
(c) the parent is unfit or incompetent;
(d) the petitioner has acted as the grandchild’s custodian or caregiver, or otherwise has had a substantial relationship with the grandchild, and the loss or cessation of that relationship is likely to cause harm to the grandchild;
(e) the petitioner’s child, who is a parent of the grandchild, has died, or has become a noncustodial parent through divorce or legal separation;
(f) the petitioner’s child, who is a parent of the grandchild, has been missing for an extended period of time; or
(g) visitation is in the best interest of the grandchild.

If you are a concerned grandparent and do not think you have a convincing case for gaining custody of your grandchild, visitation may be the next best option. It can allow you to have a relationship with your grandchild and enable them to feel your influence in their life, even if they cannot live with you. Work with an experienced family attorney to gain the best possible outcome for you and your grandchild.

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