Third Party Custody Claims - Sometimes the Non-Parent Wins

While it is not clear from the Court of Appeals' Opinion why the children were not in the custody of their mother, what is clear is that several children were living with their aunt who was, at the time of the custody trial, the guardian for the children. It is not clear where their mother was, but she was obviously not available to care for the children.

Their father sought custody. Thus, this case presents a third party with an established custodial environment with the children seeking custody and the biological father as to whom, under Hunter v Hunter, the parental preference applies. The third party, thus, had the burden of proof by clear and convincing evidence to prove that it was in the best interests of the children to remain with her rather than to live with their father.

The C of A affirmed the trial court's ruling that the children should remain in the custody of their aunt. Father attacked the trial court's decision as being against the great weight of the evidence. The C of A examined the trial court's decision regarding issues such as the father's drug addiction, whether he had skewed the drug test results, other inappropriate conduct involving sexually inappropriate texting with a 12-year-old girl, past domestic disturbances, his past criminal record and his claim that he fostered the children's religious education and found that the trial court's conclusions were based upon its ability to judge the credibility of the witnesses at the trial. The C of A upheld the trial court's decision to award custody to the children's aunt and also its decision not to award Father any attorney fees.

Download Gansen_v_Phillips, Docket No. 304102, May 29, 2012 (Unpublished)