There is rebuttable presumption that custody with a parent is in the best interests of the child unless proven otherwise by clear and convincing evidence.  In another word, there is a parental presumption of fitness that can only be overcome by clear and convincing evidence to the contrary.  This is also a constitutionally rooted and protected principle.

In the District, a third party may file for custody of a minor child – however, the legal standard used – similar to adoption and termination of parental rights – is as stated: by clear and convincing evidence.

Thus with the third party custody complaints, the presumption favors parental custody.  Thus it is in the children’s best interests to be raised by their parents rather than by a third party and unless the court can articulate by — clear and convincing evidence — that the parents are unfit, the parental custody presumption is not rebutted.

A third party may file a complain for custody of a child if:

1) The custodial parent for the past three years consent to the third party complaint; or that:

2) The third party has lived in the same household as the child for the past 4 months out of 6 preceding filing of the action, and has been the primary provider of food, shelter, clothing, and care of the child or;

3) That the third party resides with the child under some exceptional circumstances in which relief under the third party custody statute is required to prevent harm to the child granted the complaint for custody details reasons thereof.

A parent may move to dismiss a third party complaint if the third party has committed an intra-family offense or if the parents allege that one has been committed.  The court will schedule a hearing within 30 days to address and to investigate both the validity of the parental allegation or the existence and parameters of the intra-family offense, if any.

The presumption favoring parental custody has been rebutted, if the court finds by clear and convincing evidence, that for example the parent has abandoned the child, or that he or she is unwilling to care for the child.  Or that custody with the parent would be detrimental to physical or emotional health of the child, or some other exceptional articulable circumstances exists in support of third party custody.

The Court of Appeals recently (Feb. 21, 2013) in IN RE D.S., K.M., B.S., R.S., T.S. & P.S., reaffirmed the application of clear and convincing standard in determining parental custody as compared to third party custody (here CFSA).  That is, although the government may show and prove by preponderance of evidence neglect and abuse, in the same case, a non-custodial father who has “grasped his opportunity interest” by filing for custody of his children will be awarded custody unless is can be established by clear and convincing evidence that placement with a third party/CFSA is in the children’s best interests.  In another word, the government has the burden to prove parental unfitness by clear and convincing evidence.

Thus similar to legal standards used in adoptions, and termination of parental rights, a third party must overcome a parental presumption of custody by clear and convincing evidence.

The Law Offices of David Stein is one of the Washington’s leading child custody/abuse litigation firms.

Categories: Family Law.