Plaintiffs, Third Parties, In Custody Cases, May Lack Standing to Bring Their Claims against Biological Parents

Third parties-those who are not a child’s biological, or “de facto” parent- can sue for custody in the District of Columbia under the Safe and Stable Homes for Children and Youth Act of 2007 (the “Act”). D.C. Code Ann. Secs. 16-831.01 to -831.13, 4-251.0 to .04, 23-2301 (2009). A parent may move to dismiss a third party’s claim at any time on the grounds that the third party does not meet the statutory requirements for standing under the Act, D.C. Code Ann. Sec. 16-831.02(b)(1). As biological parent may move to dismiss the Complaint at any time on the grounds that a third party does not meet the statutory requirements for standing under the Act. D.C. Code Ann. ?16-831.02(a)(1).

There are two categories of individuals under the Act; parents (including biological, adoptive and “de facto” parents), and everyone else (third parties.) There are three categories of third parties who have standing to sue for custody under the Act, based on consent, caretaker status or exceptional circumstances. The first category of third party who has standing to sue for custody under the Act is a third party with the consent of the primary caretaker parent. A third party will have standing under the Act if he or she has obtained consent to the motion or complaint for custody from the parent “who is or has been the primary caretaker of the child within the past three years.” D.C. Code Sec. 16-831.02(a)(1)(A). The second category of category of third party who has standing to sue for Custody under the Act is a third party who has been a caretaker of a child, as specified, under the Act. A caretaker has standing is he or she has both: o Lived with the child “for at least 4 of the 6 months immediately preceding the filing” of the complaint or motion for custody, or, “if the child is under the age of 6 months, for at least half of the child’s life,” D.C. Code Ann. Sec. 16-831.01(a)(1)(B)(i), and o “Primarily assumed the duties and obligation for which a parent is legally responsible, including providing the child with food, clothing shelter, education, financial support, and other care to meet the child’s needs.” D.C. Code Ann. Sec. 16-831.02(a)(1)(B)(ii). The third category of third party who has standing to sue for custody is a third party who lives with the child when exceptional circumstances exist. In order to qualify for standing under this provision, the third party must plead “in detail” why the relief is necessary to prevent harm to the child.

In practice, arguments under this provision are built around impending action by the Child and Family Services Agency, protection from abuse, or the need to obtain some service for the child that would only be addressable with a custody order. If a third party cannot obtain standing under any of the above three categories, he or she may nonetheless be able to claim standing under the Court’s equitable jurisdiction, as was the practice prior to the Act. The Act provides that a third party’s ability to seek custody “under any other statutory, common law or equitable cause of action.” In the instant case there has been no such showing of either a statutory, common law or equitable cause of action that allows Plaintiffs to proceed. In fact, in order to protect a parent’s constitutional rights with regard to their children, the Act presumes that parental custody is in the child’s best interest. D.C. Code Ann. ?16-831.05. Parental rights are further protected by the requirement that the third party bear the burden of proving that parental custody is not in the child’s best interest by clear and convincing evidence. D.C. Code Ann. Sec. 16-831.06(b)(emphasis added). In determining whether the parental presumption has been rebutted the court must find that at least one of the following factors has been proven by clear and convincing evidence: 1. The parents have abandoned the child or are unwilling to care for the child 2. Custody with a parent is or would be detrimental to the physical or emotional well being of the child or 3. Exceptional circumstances, detailed in writing by the court, support rebuttal of the presumption favoring parental custody D.C Code Ann. Sec. 16-831.07 If the third party does not rebut the parental presumption, the court must dismiss the third party’s claim and enter any appropriate judgment in favor of the parent without reaching the second “bests interests” prong.