Sometimes there is a situation where a third party (ie a grandparent) wants custody of a child for which they are not the legal or biological parent. These cases occur outside of the context of divorce and the typical custody proceedings. For that reason, the courts treat these cases differently.

There is a presumption that a parent (either legal or biological) should have custody of his/her children. This is because parents are said to have a fundamental right to care for their children. For that reason, if a third party seeks custody of a child or children, that third party has the burden of proving that he/she should have custody. 

How does a third party prove that he/she should have custody of a child or children?

In a dispute between a parent and third party, the burden is on the third party to show that either (1) a parent is unfit or (2) exceptional circumstances exist that make a parent’s continued custody detrimental to the child’s best interest. If the third party is able to prove either of these things, then the parent and the third party are considered to be on “equal footing” in terms of a custody analysis. That means that the court will then determine what custody arrangement (either to the parent or the third party) is in the best interest of the child.

What are exceptional circumstances?

The Court uses the following factors to determine whether exceptional circumstances exist:

• The length of time the child has been away from the biological parent
  
• The age of the child when care was assumed by the third party
  
• The possible emotional effect on the child of change of custody
  
• The period of time which elapsed before the parent sought to reclaim the child
  
• The nature and strength of the ties between the child and the third party custodian
  
• The intensity and genuineness of the parent’s desires to have the child
  
• The stability and certainty as to the child’s future in the custody of the parent