Non biological parent discussing custody rights with lawyerThe issue of non-biological parent custody rights is on the rise due to the evolving concept of the family as a unit. Traditionally, courts had to decide the parenting rights between two biological parents, but nowadays, non-biological parents also take care of children in the form of stepparents, relatives or family friends. In this article, we’ll take a closer look at the nuances and details of this unique situation.

Non-biological Parents

In case the biological parent and the non-biological parent are on good terms, custody problems will not be an issue. However, what happens when the relationship between the biological and non-biological parents starts to deteriorate?

Alternatively, what happens when both biological parents are absent, unfit or unwilling to take care of the child? In such cases, the child’s guardian will need legal standing to take proper care of their child’s education, health care and other needs.

The non-biological parents likely wonder about their rights and options regarding custody. While non-biological parents may not have traditional parental rights that give them physical and legal custody of the child, they might be able to petition the court for equal custody.

Can a Non-biological Parent Get Custody?

A biological parent will almost always enjoy special rights to child custody over a non-biological one. Nevertheless, in certain situations, the court may grant the non-biological parent custody rights, even over the biological father or mother’s objections. Child custody court hearings that involve non-biological parents are usually complicated.

The court may award a non-biological parent custody if:

  • The court finds the biological parent unfit.
  • The court determines that the biological parent is not available because of death, abandonment or other reasons.
  • The court determines that living with the biological parent is not in the child’s best interests.

In general, the court considers giving custody to a non-biological parent who has shared a sufficient amount of time with the child whom they consider as part of their family.

Situational Aspects

For example, consider that a woman marries a man who already has a child from a previous marriage and that child lives with them full time. The child will view his father’s wife as his stepmother. In case of a divorce, automatically, the kid’s custody will remain with the biological father.

However, if the father cannot take care of the child for any reason — in case of his imprisonment, disappearance, or death — the court might grant the stepmother custody rights if the biological mother is unavailable for any reason. Keep in mind that the biological mother would be the next in line for her child’s custody, before the stepparent who wishes to provide a loving and caring home.

Approval of Child Custody

The biological parent must approve all arrangements that grant non-biological parent visitations or custody rights if they are available and suitable to make decisions.

In these cases, all concerned groups can reach an agreement peacefully and suitably, with both parents agreeing and approving the set-up. Parents should always consider the child’s best interest and avoid arguments and drawn-out court battles.

What Are the Custody Rights of a Non-biological Parent?

Petition for child custody for non biological parentIn most cases, the court will give non-biological parents the same parental rights as those of biological parents. As long as the law recognizes a non-biological parent as the child’s mother or father, the court may grant them full legal and physical custody. This custody right enables the non-biological parent to decide the child’s education, healthcare and habitat.

In addition to child custody rights, non-biological parents can also practice numerous other parental rights, such as:

  • Form and maintain a relationship with the child through visitation rights
  • Make decisions about fundamental issues that influence the child’s upbringing
  • Pass down a property to a child through inheritance
  • Obtain legal counsel for a child
  • Enter into a contract on behalf of a minor child
  • Decide on placement for a child. (e.g., choosing a guardian if the non-biological parent becomes incapacitated or deceased)

It is important to note that rights may vary between state statutes.

How Can the Non-biological Father Be the Legal Parent?

Non-biological fathers, including stepfathers, long-term partners and same-sex partners, develop a deep bond with their non-biological children. In some cases, a father might take time to discover that the child is not his own. Fortunately, most of the states offer non-biological parents visitation and parental rights.

For the court to grant a non-biological father the status of a legal parent, he should offer proof of one of the following:

  • The name of the non-biological father on the child’s birth certificate
  • The legal adoption of the child
  • Acting like the child’s father for an extended period

Since the court considers non-biological fathers as legal parents under particular circumstances, it can grant them, in such a case, the same parental rights as biological fathers. The non-biological father rights will make him liable for making payments and adhering to child visitation schedules if a dispute arises over child custody or child support.

This means that after the court considers the best interests of the child, it will allow the non-biological father to get custody orders or child support. In a state that grants parental rights, non-biological fathers need to demonstrate a solid relationship with the child. However, if the state does not grant parental rights, non-biological fathers would still qualify for visitation. Some states, like California, acknowledge that a child can have multiple legal parents.

Can a Biological Father Terminate a Non-biological Father’s Parental Rights?

It is challenging for a court to terminate parental rights, particularly in cases where the biological father shows no interest in raising the child in the first place. However, a biological father can file a paternity claim in family court and terminate the non-biological father’s parental rights.

In case the court agrees to hear the case, it offers the biological father a chance to present his arguments and evidence (i.e., paternity or DNA test) that supports his request. Yet, the court does not terminate the non-biological parent’s rights just because a father can prove their paternity.

For instance, the court may permit the non-biological father to preserve his parental status if the non-biological parent is a better parental figure than the actual father or if it would be against the best interests of the child.

What if the Father Is Not a Legal Parent?

Unfortunately, if the court does not consider the father as a child’s legal parent, the issue becomes more complex. With enough proof, some states might consider giving the non-biological father visitation and custody rights in this case. However, in other states, courts might not award the non-biological father any rights at all.

As a Non-biological Parent: Should You Hire an Attorney?

To gain custody of a child that is not yours, you should seek help from a professional attorney you trust. As mentioned above, a biological parent often has an advantage over a non-biological parent in child custody battles, so a qualified attorney can help you obtain custody by claiming that the biological parent is unfit and that you are already serving as a parent to the child.

However, only a judge can give you custody, which you must request by filing a petition with the appropriate court. In this case, a professional lawyer you trust can guide you through the process and ensure that the court makes a decision that serves the child’s best interest.


  • Child in between a biological and non biological parentWhether a non-biological father gets custody or not solely depends on the circumstances of each case. In some cases, the court may award custody to a non-biological parent, but only after closely handling and affording the fundamental rights to biological parents.
  • The court may give the custody to a non-biological parent if it finds:
    – The biological parent unfit
    – That the biological parents are not available
    – That living with the biological parent is not in the child’s best interest
  • Once a court considers a non-biological parent the child’s legal parent, it may grant them full parental rights normally granted to biological parents.
  • A biological parent may challenge the paternity of the non-biological legal parent. However, the court does not permanently terminate the latter’s status over the results of a paternity test.
  • Laws differ from one state to another, and in some, non-biological fathers do not get any rights if the court does not grant them legal parent status.
  • If you are trying to gain custody of a non-biological child, you should seek help from a qualified attorney who understands your state’s processes.

In all custody battles, parties fight for the child or children while disregarding the effect this battle can have on their mental and emotional health. Therefore, parents, biological or not, should always put the child’s best interests before theirs and try to alleviate the emotional burdens that a child endures during custody battles.

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