A child custody dispute may arise between a parent and a nonparent in a variety of contexts. One type of case that has received considerable comment involves the same-gender partner of the child's parent. Other situations involve a stepparent, probably the most common case of a nonparent seeking custody; a relative, including a grandparent; or a third party with whom a parent has placed the child during an extended period. In all of these cases, the child may have lived with the nonparent for most of the child's life, and the non-parent may have been the primary caretaker of the child, forming a very close psychological parent-child bond.
In these types of custodial disputes, the non-parent seeking custody is faced with the traditional rule that the parent is entitled to custody unless that parent is found to be unfit (Buser 1991; Clark 1988). The effect of giving primacy to the interests of the biological parent when the other choice is a nonparent means that the best interests of the child may be disregarded.
Legal scholars have puzzled over the persistence of a rule that seems to place the child's best interests after those of the parent. Some scholars speculate that these cases reflect a concern about the importance of blood ties and a belief that the child's biological parent will in the long run be the most successful caretaker for the child. In addition, courts often show sympathy for a biological parent who has, perhaps after a period of years, now realized how important the child is (Chambers 1990). Finally, in the case of the same-gender partner, the court may express some of the societal ambivalence toward that family form.
Custody for nonparents is an area in which the law is developing and in which changing values and attitudes may result in changes in the law. The American Law Institute's Principles of Family Dissolution treat nonparents who have lived with and cared for a child as de facto parents and authorizes the award of custody to them.
Nonparents often seek another custodially related right, that of visitation. Here they have been more successful, perhaps because one of the major nonparent groups interested in securing visitation rights has been grandparents, who have shown themselves to be very effective lobbyists (Clark 1988). In the United States, although all states have adopted statutes authorizing courts to grant visitation rights—if in the best interests of the child—to grandparents and often to other nonparents, in Troxell v. Granville (2000) the United States Supreme Court struck down a broadly worded Washington statute authorizing the court to grand visitation to "any person." Although the Supreme Court indicated that this did not affect other non-parent visitation statutes, some states have held their statutes to be unconstitutional under Troxell (Bobroff 2000).
See also: CHILDCARE; CHILDHOOD; CHILDREN'S RIGHTS; DIVORCE: EFFECTS ON CHILDREN; DIVORCE MEDIATION; FAMILY LAW; GAY PARENTS; GRANDPARENTS' RIGHTS; GUARDIANSHIP; IN-LAW RELATIONSHIPS; LESBIAN PARENTS; STEPFAMILIES
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MARYGOLD S. MELLI