adopting foster children - how my lawyer did it

Who Can Pursue A Child Custody Case?

Child custody is an issue that can rapidly become contentious. Especially if there are concerns about how well someone might serve as a parent, this can lead to questions about who ought to have the right to custody of a kid. The American legal system, however, has a way to handle this question. Let's look at how the courts decide who can seek custody.

Strong Preference for Biological Parents

The biggest thing to remember is that the law has an established preference to place children with one of their two biological parents if at all possible. Judges follow this approach because the law requires the court to make decisions use the standard of what's in the child's best interest. By extension, the law presumes that biological parenting is in the best interests of a kid. Similarly, the law usually presumes placement with the mother is the preferred form of primary custody.

To convince the court to see it differently, you must come prepared. Hire a child custody attorney to present your case. If you can't document a compelling reason why a kid should not be with one of their biological parents, don't expect much.

Courts usually want to see evidence that the parent has been repeatedly incapable of providing a safe and nurturing environment for a child. This means you'll have to present evidence of ongoing abuse or economic deprivation, even after interventions by child services.

Be aware, though, that judges will try to exhaust all possible other options, such as parenting classes, counseling, and financial assistance, before they permanently take custody from a biological parent. Similarly, they will want to place the child with the remaining biological parent if possible.

Nearest Relatives

Presuming there is a good reason to explore other child custody arrangements, such as both parents dying or proving incapable of doing the job, the court's next preference is to place a kid with the nearest possible relatives. Grandparents, aunts, uncles, and adult siblings will receive preference. More distant relatives are considered a check-down option in case the court can't identify anyone closer.

If at least one of the parents lives nearby, the court will prefer to place the child in the home of the physically closest relative. This allows the parent to still have visitation.


Someone unrelated to the child will likely have to go the longer route of foster parenting followed by adoption. This is particularly the case if one of the parents is alive. The court will usually reserve judgment on whether the parent's situation might improve and allow them to resume custody in the future.