Friday, February 26, 2010

Petitioner Must Allege Facts at Adequate Cause Hearing on Non-Parental Custody Petition that Demonstrate the Parents Are Unfit

A unanimous Supreme Court decision clarified the standards the non-parent must meet for the court to hear a non-parental custody petition. In Re Custody of EATW, docket # 81945-9, held that a trial judge shall deny adequate cause and dismiss a third-party custody petition unless the petitioner files an affidavit that 1) alleges the child is either not living in the physical custody of one of its parents or that neither parent is a suitable custodian, and 2) facts showing that, if true, both parents are unfit or, placing the child with either parent would result in actual detriment to the child’s growth and development.
The opinion is based on the clear language of the statute and the standards established by the controlling third-party custody case, which is In Re Custody of Shields.
As the court explained , the statute strikes a balance between parental rights, which are protected by the 14th amendment to the Constitution, and children’s rights. Parents have the right to raise their children, but children have a sometimes countervailing right to basic nurture, physical and mental health, and safety. In striking the proper balance, the child’s health and safety shall be the paramount concern.
The unfit parent or actual detriment to the child standard, according to the court, strikes this balance. For a court, after trial, to award custody of a child to a non-parent, therefore, it must find either that the parent is unfit or that placing the child with the parent would result in actual detriment to the child’s growth and development.
The statute also seeks to weed out spurious non-parental custody petitions at the beginning of the case, before they cost the parties and the taxpayer’s money. The statute does this by requiring an adequate cause hearing. At the hearing, the petitioner must present prima facie evidence, e.g. evidence submitted in a declaration, that it will be able to prove it case with live testimony and other evidence at trial.

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