Aug 24

3 Theories for Devoted Third-Party Custodians to Use in Court

Written by: Megan Dell


Kinship CareThird-party custodians are people, often relatives, who obtain physical custody of someone else’s children. These arrangements are often referred to as “kinship care.”

How Do Third-Party Custodians Get Physical Custody

A common way for third-party custodians to start taking care of someone else’s children is when there are allegations the children have been abused or neglected, and the Department of Social Services gets involved. Often, DSS will require the children to leave their home, but they will allow them to go stay with relatives as part of a “safety plan.”

In other situations, a parent may leave their child in the care of a relative or friend because they are unable (or, sometimes, unwilling) to provide for the child’s needs.

Third-Party Custodians

Kinship Caregivers Need to Obtain Legal Custody

A child living with you does not automatically give you the legal authority to make decisions for them, such as where they will go to school or whether they will receive a particular medical treatment. Even if DSS, the caregiver, and the parents all agree to a “safety plan,” the caregiver is not entitled to make decisions for the child.

Not having legal custody of a child can also affect your ability to provide them with health insurance and other benefits.

Legal Theories to Help Third-Party Custodians

The absolute best time to file a case for legal custody of a child is when the child is living with you. Kinship caregivers often do not want to upset the children’s parents so they avoid filing for custody, but if they wait until the parent tries to resume custody of their child, it might be too late.

1. Preventing a Parent from Picking Up their Child

If a parent has relinquished custody of their child to a third-party custodian, then the third-party custodian can file an action asking the Family Court to prohibit the parent from taking the child back. The leading case that allows such an action is Moore v. Moore, 300 S.C. 75 (1989).

2. Showing You Are the De Facto Custodian of the Child

Under S.C. Code Ann. Section 63-15-60, the Family Court can make a determination that a third-party caregiver is the de facto custodian of a child if the caregiver has undertaken primary responsibility and financial support of the child for a period of time.

3. Proving You Are the Psychological Parent of the Child

Finally, under the right circumstances, a third-party custodian may be able to prove they have served as the child’s psychological parent, such that they should continue to have physical custody, as well as legal custody. As first established in Middleton v. Johnson, 369 S.C. 585 (Ct. App. 2006), the caregiver must be able to prove they have a parent-like relationship with the child consented to by the child’s parent, the child has lived in the same household as the caregiver, the caregiver assumed responsibilities of parenthood, and the child and caregiver have established a bonded, dependent relationship. 

Resources for Kinship Caregivers

If you have physical custody of a relative’s children, there are resources to help you navigate the complex problems that may arise. In Charleston, the non-profit organization HALOS provides guidance and support for third-party caregivers.

Third-Party Custody Cases are Factually Complex

When analyzing whether a third-party has had a significant enough relationship with a child to be granted legal custody, the Family Court looks to specific facts that are not always easy to prove. To pursue custody of a child who lives with you but isn’t your child, you should seek the advice of a Family Court lawyer who is experienced in kinship care cases.