Child Custody in Michigan—Third Party Custody

1. What is the difference between parental custody and third party custody?

In most custody matters, the disputes are between the parents themselves. However, under some circumstances, the disputes may be between one (or both) of the parents and a person who is not the mother or father. In this situation, that other party is called a “Third Party”.

2. What are some instances that might involve custody disputes with Third Parties?

A. If there was an Agreement between the Parents and the Third Party

  1. The parents themselves may have agreed to allow custody of one or more of their children to be with a third party.  This may occur when the natural parents or parent may wish to be gone from their home for a period of time, or may be confronted at a time in their lives when they just may not feel capable of handling their own children.  The parents might then approach an extended family member, such as a grandparent or sibling, or a close friend, for that person to assume responsibility for the care of their children for a period of time.

  2. An actual child custody dispute may arise in this kind of situation later if the natural parents and the third party disagree as to the return of the children to the custody of the natural parents.

B. If there was No Agreement between the parents and the Third Parties

  1. This situation may come about when, for example, a third party believes that the natural parents are not taking care of their children properly

  2. The third party may then wish to seek custody of those children.

    Normally, in this type of situation the third party would need to approach the police or some child protective services agency in order to register a complaint, rather than filing an action in court on his or her own. In this regard, see the discussion on “Standing” paragraph 3(B) below.

  3. Sometimes it may be possible for that Third Party to seek Guardianship of the child first.  This would involve going into Probate Court. Then, if and when guardianship is obtained, it may be easier for that person to file for child custody in his or her role as Guardian. In effect that Guardian might be considered to have standing.  Again see 3(B) below.

3. What are some of the legal questions that the courts must face when they are confronted with child custody disputes between third parties and natural parents, as compared to disputes between the parents themselves?

A. Presumption in favor of natural parents

  1. The Michigan and U.S. Constitutions and existing case law give constitutional rights to natural parents for the custody of their own children.  These rights can only be lost if facts exist indicating that the parents are not fit.

  2. In effect, a strong presumption exists in favor of custody of children being with their own natural parents, as compared to being with the third party. The courts believe, based upon evidence from child psychologists, that it is in the best interests of children to be with their own parents.

  3. This is so even

  • when the third party may be a decent person or being able to be a good parent, or

  • when arguably even when the third party could be a better custodial person, or

  • when the children have been in the care of the third party for a period of time

Therefore, the courts in child custody disputes that involve third parties will, absent strong circumstances, keep the children or return the children to the custody of their own parents.

On the other hand, the court will be persuaded to give custody to a third party when looking at the circumstances involved it is presented with clear and convincing evidence that it is in the child’s best interests for the children to be given to that third person.

The Standard of Proof for a Third Party to be successful, however, is more than just persuading the judge by presenting more, let’s say, than 50% of the evidence. This lower standard exists in disputes between natural parents when they are disputing custody in a divorce case. However, in a dispute between a parent and a third party, the third party has a greater burden, which is, that the proof that he or she is required to present must be clear and convincing that the children remain with her or him.

Some of those circumstances may be as follows

  • the children have been with the third party for a long time, or

  • the home of the natural parents for some reason is not fit, or

  • the parents themselves are not fit at the time that they wish the return of their children, or

  • the child is old enough, such as being a teenager, and does not wish to be with this or her parents

Refer to the page entitled “Michigan Child Custody Basics," which reviews in detail all of factors the courts look at in assessing custody disputes for more information. There you will see the variety of factors and questions that the courts look at in resolving custody disputes.  As implied above, however, the courts usually make every effort to place children back in the care of the natural parents

B. Standing in Court to file a Petition for Custody

Whether a third person has actual standing in court to file a petition in court for custody is a complex question. What this means is that a third person does not automatically have a right to come into court and seek custody of someone else’s child. This is particularly so when the third party has not had the child in his or her own home but just is observing and then contending that another’s child is not being properly cared for.

This kind of situation is commonly called a question of “Standing”. Since the law is particularly complex in this area, it is suggested that an attorney be consulted in order to determine if a person actually has standing to seek custody of another’s child.

Even if standing does not exist, the third party, as explained above in 2(B)(3), still has recourse to seek protection of that child by approaching the authorities for an investigation.

4. Should one seek an attorney in a Third Party Custody matter?

Persons are not required to have attorneys in child custody disputes. However, since third party child custody disputes are complex, it is strongly urged that all parties seek legal advice, and consider retaining the services of an attorney.

To locate your local legal aid or legal services office:

    • Visit the home page and search for local assistance by entering your zip code in the box marked “Find a lawyer, organization or related service to help you with your problem.” or
    • Look under "attorneys" in the yellow pages, or 
    • Contact the Michigan State Bar lawyer Referral Service at (800) 968- 0738, or
    • Persons age 60 or older, regardless of their income, may be able to receive free advice from the Legal Hotline for Michigan Seniors by calling (800) 347-5297.

This article appears courtesy of Legal Assistance Center of Grand Rapids