Custody Disputes & Modern Families

The old school picture of what a family is “supposed” to look like is a thing of the past. Today’s families are unique and different and present some novel legal issues, particularly as it relates to same-sex couples who start a family together and have children. But what happens when the couple does not stay together? How do courts make custody determinations in cases involving a biological parent and a non-biological parent? The law in North Carolina on this topic has been developing in recent years.

In order to have standing to seek custody of a child with whom you do not have a biological relationship, one must have established a parent/child relationship with the child and allege that the biological parent has 1) taken steps which are inconsistent with his or his parental status, and/or 2) is unfit. With same sex couples, it is most often the first prong that gets them standing to seek custody. If the biological parent of the child has voluntarily conferred parenting rights and responsibilities on someone who is a non-parent, that is considered taking steps which are inconsistent with the parent’s constitutionally protected parental status. For example, if you (the non-biological parent):

  • Participated in, and/or perhaps paid for, conception of the child;
  • Participated in the pregnancy by attending doctor appointments, preparing a nursery in the home, selecting the child’s name, etc.;
  • You and the biological parent have held yourselves out as parents of the child to friends and family;
  • Were present for the child’s birth;
  • Participated in the child’s upbringing (daily care, discipline, learning, etc.);
  • Cared for the child long-term in the biological parent’s absence.*

*This is not an exclusive list, just examples.

Whether a same-sex couple has been married in a state which recognizes such marriages has no bearing on the non-biological parent’s standing to seek custody. What matters most is the nature of the non-biological parent’s relationship with the child. A couple’s relationship ending does not mean that the non-biological parent’s relationship with the child is severed. Speak to a lawyer about your rights as a non-biological parent.

Blog written by Courtney Smith


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