Today’s how-to is prompted by an interview I did with HLN that recently aired on custody rights of people who are convicted of crimes, and actually, specifically, crimes against the other parent. Although that’s not really the topic, we’re going to talk broadly on third party rights, but that’s usually what’s involved in those kinds of cases.
This post is about how to get custody of another person’s child. Let me be clear, I’m not suggesting that you go out and file for custody of another person’s child unless you have a compelling, legitimate reason to do so. If you do, then these tips will help you along in New Jersey.
Why A Third Party Would Seek Custody of a Child
There are two issues that raise the possibility of obtaining custody of another person’s child. You can’t just simply say that’s something you’re seeking. Here are the two most common situations. One, the parents themselves do not want to, or cannot, parent the children, and they are looking for an option. Two, and more common, is where they’ve been demonstrating that they may be incapable of parenting a child because of some kind of risk of harm, abuse, or neglect.
Approaches to Obtaining Custody
The approaches to obtaining custody that I’m going to talk about are going to apply really in both situations, but obviously it’s less difficult and especially compelling if it’s the parents who are seeking to do it as opposed to the parents unwillingly being found to be incapable of doing so.
The first issue is a third-party custody application. That could be any person. Generally, people think it’s the grandparents. That’s something you hear a lot about in the media. New Jersey has specific statutes for grandparent rights, but it really can be any person who has an interest or desire to have custody of somebody else’s child.
The second way, and the more common way, is going to be through DCP&P, the state organization for child welfare. The third is through an adoption process through the court system.
Third-Party Custody Application
Let’s talk just a little bit about each one. A third person petition can be, again, from any person. You file it by submitting a motion to the family court in New Jersey. If the result in custody came from a divorce case, you file a motion in the underlying divorce case. Otherwise, you’d file in what’s called a non-dissolution preceding. The court has some forms that you can use. There are actually prescribed forms that are required. Even if you want to submit your own documentation, you need to use those forms.
Again, anybody can file that. The issue there is going to be the best interest of the child, which will primarily be the issue in all of the cases where somebody else is taking custody of a child. Predominantly in this case, where it’s another person and there’s no consent of the parents, you need to show that it’s in the child’s best interest.
Once you file your motion, if you have shown in what’s called prima facie showing (an initial showing) that there is a just reason to examine the petition, the court will schedule what’s called a plenary hearing, and some discovery to follow. Plenary hearing is a short but full trial. You can expect to have witnesses, maybe experts, exchange of documents, and anything you would have at a normal trial, just usually not as long.
From the time of the motion decision and the plenary hearing, you’ll usually have the exchange of what’s called discovery, which is basically what I talked about a moment ago. This consists of exchanging documents that are going to be relevant, getting expert reports and exchanging them, and giving notice to any witnesses you plan to call.
Again, ultimately, it will be a best interest standard. New Jersey has a specific custody statute that I won’t go to at length in this video (because it’s beyond the scope), but it will set forth criteria. I think there are about 10 or 14 different issues a court is supposed to look at when determining a third person’s custody application. It’s the same criteria if it’s a third person, as opposed to another parent or relative trying to change a custody award.
Going Through the State’s Child Welfare Organization
The second way is through DCP&P, Division of Youth and Family Services. Again, a lot of people think child protective services. That’s a common phrase. We don’t call it that in New Jersey, but some people know it by that. That is a process when the Attorney General, the attorney’s office that represents DCP&P, determines that a parent has committed an act of abuse or neglect, and it arises to such a level that they need to remove the child. They will then engage in two different processes to handle the custody of the child.
The first is what’s called a Title 9. That’s just a code under which the abuse and neglect preceding originates. The first preceding under DCP&P removal would be to reunify the family. At first, when they remove a child, they’re always supposed to try to help the family remove whatever harm led to the child being removed from the house so that they can return a child. If that’s not successful, they will move to a Title 30, which is termination of parental rights. That again is just the name of the statute under which it follows.
If, after that preceding, the court has determined that the parent’s rights should be terminated to the child, then that child later becomes available for adoption. This brings us to the third area, and that is adoption. Again, it can be through DCP&P hearing, it can be by consent of the parent, or it can be through an agency that has already received the child and the proper approval documentations for adoption.
Adoption is a process by which one other person, a third party, will file for custody of the other person’s child. This process is significantly different from any third-party custody, or even DCP custody. When we talk about custody, a custody decision is always considered a temporary decision, meaning it can be changed at any point in time. Any two parents who have a custody arrangement, their agreement and arrangement is always temporary.
If you filed for custody under the two issues I mentioned first, the third party rights or DCP&P for custody, then you’re getting what also is considered temporary. They can be changed again. Adoption is a process by which it becomes final. It can be done independently of the first two, or it can be part of or following the first two, but adoption is an entirely different preceding.
The purpose of it and the main distinction is, you are actually going to be severing the natural parent’s rights to that child, unlike the first two, third party rights and DCP&P. When you file for adoption, again, there’s a pleading specifically that needs to be filed. There’s a protocol that the court will send you through about certain notices that need to be posted, both for the parents and other members of society (possibly even a criminal division just for notice purposes), and then there will be another plenary hearing like I described for the third-party rights. This will be to determine if it’s in the child’s best interest to be adopted by the other party, thereby terminating the natural parent’s parental rights.
It can be with or without the consent of either one, or both, of the parents, but it always has to be on notice. If it’s without consent of either one of the two parents, and it’s not through an agency, and it’s not through DCP&P placement, you’ll have the burden of actually showing that that is in the child’s best interest to have his or her natural parent’s rights terminated. That burden will not exist if you receive it through an agency placement that has proper authority for adoption, so it will not exist if you receive the child through a DCP&P placement after a termination of parental rights.
Be Prepared for a Challenging Process
Again, I want to indicate that this is not to encourage you to seek custody of another person’s child. That is a very complicated process. The parents of any child have a constitutional right to parent their child. Trying to take temporary child custody, a visitation or parenting schedule, or adoption is always a very compelling issue with the court. Also, to some extent, it can be harmful to a child. Any time a child’s rights are terminated from their natural parents for whatever reason, most experts will agree there is some modicum of harm to a child. These are things you need to consider before you seek filing a petition. If you do, hopefully this information will help guide you in the beginning of it.
If you have any questions about this information, you could always call a family lawyer Montclair at 973-562-0100. You can e-mail me at Brad@MicklinLawGroup.com.