Nonpareantal Rights in Child Custody Cases Require a Request by the Nonparents for Custody or Parenting Time

The law allows, in limited circumstances, nonparents ho have a special relationship with children to seek custody or parenting time with the children. Most notably, the nonparents must show that the parents are not acting in the children’s best interests before a nonparent can even be considered. A more basic point was recently noted in a case from Nevada: the nonparents must appear in the case and request custody or parenting time.

When the parents divorced, the parents received joint custody of the children and the mother, who lived in Las Vegas, primary physical custody. The father and the paternal grandparents lived in Reno. Because one of the children had dyslexia that affected her performance in the Las Vegas public schools, the parents agreed to enroll her in private school in Reno and send her to live with the grandparents. The father later moved for a change of custody. The grandparents did not appear and did not request custody. The trial judge, however, surprised everyone by ruling that the grandparents should be awarded physical custody.

The Nevada Supreme Court ruled that the trial judge could not award custody to the grandparents because they had not requested it and nobody had any notice that she was considering it. This reflects a basic principle of law: the court is generally limited to the case as the parties raise the issues. (There are a few exceptions, but they don’t apply to this situation.) As a result, the trial court was ordered to consider whether to change custody between only the parents.

At a more basic level, the trial judge doesn’t appear to have considered whether the parents were not acting in the child’s best interests. The judge’s ruing does not include any findings on this point.  It can be argued, very easily, that the parents’ decision to send the child to live with the grandparents was entirely reasonable and in her best interests because of her learning disability.

If you are a nonparent who has regular contact with a child that forms a parent-like relationship, and you want to request custody or parenting time, you should consult a lawyer. Be prepared to bring evidence that the parents are not acting in the child’s best interests and that the best interests would support your having custody or parenting time. If you are a parent in a custody dispute, you can rest assured that nonparents will not receive custody or parenting time unless they ask for it..

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