Can Someone Other Than a Parent Obtain Custody of a Child?

A non-parent can obtain custody and similar rights, but only in limited circumstances. Nevada law strongly prefers that children remain in the custody of their parents whenever possible. Even so, a non-parent may obtain legal rights involving a child in three different ways:

• visitation;
• custody; or
• guardianship.

Visitation only gives a non-parent the right to spend time with the child.  Custody and guardianship can provide more extensive rights. 

Visitation

If a parent has denied or unreasonably restricted visitation, Nevada law allows certain non-parents to petition the court for visitation. These include:

• Grandparents, great-grandparents, and siblings, when a parent is deceased or no longer has custody of the child; and
• Any person with whom the child has lived and developed a meaningful relationship.

The court starts with the presumption that granting non-parent visitation is not in the best interests of the child. The burden is on the non-parent to show, by clear and convincing evidence (a very high standard of evidence) that the visitation is in the best interests of the child.

Visitation is generally easier to obtain than custody or guardianship, because there is no need to show parental unfitness.

Custody

A non-parent may also obtain custody of a child, but only in limited circumstances. First, the non-parent must prove by clear and convincing evidence that awarding custody to a parent would be detrimental to the child. This generally requires showing that the parent is unfit or that other extraordinary circumstances exist. In deciding whether a parent is unfit, the court considers factors such as abandonment, neglect, or the likelihood of serious physical or emotional harm to the child. Second, even if a non-parent is able to show that awarding custody to a parent is detrimental to the child, the non-parent must still prove that awarding custody to the non-parent is in the child’s best interests.

Guardianship

A non-parent may also obtain guardianship of a child when the parent is unfit or other extraordinary circumstances exist. The legal standards are generally the same as for awarding custody to a non-parent: the court must find that placing the child with a parent would be detrimental to the child and that granting guardianship to the non-parent is in the child’s best interests.

Guardianship differs from custody in several important ways. First, the procedure for obtaining a guardianship is different. Among other differences, in guardianship proceedings the court often has additional resources such as appointing a guardian ad litem to represent the child’s interests. Second, guardianship involves continuing court supervision. Guardians are generally required to keep the court informed of significant changes affecting the child and, in some situations, obtain the court’s permission before taking certain actions, such as moving the child to a new residence.

Finally, guardianship is generally less flexible than custody. Although there may be more than one guardian, and a parent may even serve as a guardian together with another person, courts rarely award only some of the rights of guardianship. A person is ordinarily appointed as a guardian with the full rights and responsibilities of that role, rather than being granted only limited guardian powers. Custody, on the other hand, is much more flexible. Courts can allocate different custodial rights and responsibilities among parents and non-parents to create an arrangement that best serves the child’s needs.

If you believe a child would be harmed by remaining in a parent’s custody—or if you are a parent defending against such a request—it is important to obtain legal advice as early as possible.