Child Custody Rights of Aunts & Uncles

By Timothy Mucciante

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When divorce started becoming more prevalent, along with it came the issue of child custody. Before “no fault” divorce, divorcing couples had more to argue about than child custody. Now in many states the only variable in the divorce is which parent gets legal and physical custody of the children. In some situations, neither parent gets custody of the children, and they are placed into foster care or with another family member, such as an aunt or uncle.

Custody vs. Visitation Rights vs. Adoption

Custody of a child has two aspects – legal and physical. Having a right to visit with a child is not the same thing as having custody of that child. Until recently, when a judge planned on granting custody to one of the parents, he would usually select the child’s mother. However, with men’s rights groups becoming more vocal about custody issues, judges are increasingly granting custody to the child’s father. Adoption is different from custody and visitations; this is a proceeding in which the natural parents' rights are terminated.

Development of Aunt and Uncle Custody Rights

Aunts and uncles are in the same position as grandparents when it comes to custody rights. Brothers or sisters of the parents have no inherent custody rights regarding their nieces or nephews. However, there are circumstances in which aunts and uncles could possibly get custody of a child.

Read More: Rights of a Sole Custodial Parent

Child Placed in Foster Care

Some circumstances prohibit either parent from having custody of a child, either on a temporary or permanent basis. In this case, the state law may require that the child be placed in foster care. Before doing so, the court may consider giving custody to an aunt or uncle, if they can meet the conditions set by the court. This type of custody may initially be temporary, but it could become permanent over time.

Appointed as Guardian

Many times when a parent is facing a life-threatening circumstance, such as a soldier or a firefighter, she may draw up a legal document that gives guardianship to her child in the event of death. This appointed guardian may be anyone trustworthy, including a brother or sister. This document should be written by a lawyer, so that state requirements are met.