Third Party / Non-Parent Custody

According to the North Carolina General Statutes, a custody action may be initiated by any “parent, relative, or other person, agency, organization, or institution claiming the right to custody of a minor child.”  N.C.G.S. §50-13.1.  As worded, the statute makes it sound as if just about anyone may seek custody of a child, even if there is no biological relationship with that child, which is not the case.  North Carolina Courts have interpreted N.C.G.S. §50-13.1 to grant standing to seek custody of a child to parents of the child (both biological parents and adoptive parents), other persons who are not considered parents of the child but whom have a t parent-child relationship with the child (including grandparents), and organizations such as the Department of Social Services.

When a non-parent seeks custody of a child from a parent, the Court must first find that you have standing to bring a custody claim. Standing means the legal right of a person to bring a particular type of legal claim. Standing for non-parents is determined on a case-by-case basis and depends upon whether you are seeking custody of the child (i.e., you want the child to live with you some or all of the time) or visitation with the child (i.e., you want to be permitted designated time to spend with the child on a consistent and regular basis).

If you have standing to pursue a custody claim, then the Court will next determine whether the biological or legally-recognized parent has taken actions which are inconsistent with his or her constitutionally protected status as a parent.  Parents in the United States have Constitutionally-protected rights to raise their children the way they see fit (known as the Peterson Presumption in North Carolina, Peterson v. Rogers, 337 N.C. 397 (1994)), which is why a non-parent seeking custody of a child from a parent has greater hurdles to overcome.  North Carolina courts have found the following acts to be inconsistent with a parent’s protected status:

• Unfitness of a parent
• Neglect of a child by a parent
• Abandonment of a child by a parent
• A parent voluntarily conferring parenting rights and responsibilities upon a non-parent (a non-parent could be a grandparent(s), other family member, stepparent, or other unrelated individual who has a parent-child relationship with the child)
  • This type of inconsistent act is likely to be the one applicable to cases where non-parents are seeking custody of a child. Examples of conduct that has been found to support this finding include:
    • The parent allowed the child to live with the non-parent for some extended period of time (for example, the parent left the child in the care of the step-parent for six months while the parent lived elsewhere)
    • The non-parent has exercised parenting responsibilities for the child, such as:
      • Providing the child with health insurance coverage
      • Providing the child with general financial support
      • Participating in or making decisions of significance for the child, such as healthcare decisions or educational decisions

Only if a Court finds that a parent has acted inconsistently with his or her protected status can the Court then apply the best interests of the child standard to make a determination regarding what custodial arrangement is in the best interests of the child.  While a non-parent seeking custody of a child from a biological or legally-recognized parent has an uphill battle, it is certainly possible to achieve.  You should speak to an experienced family law attorney about whether you have grounds to seek custody of your child despite the fact that you are not a biological or legally-recognized parent.

Only grandparents have standing to seek visitation with a child, and in such cases where a grandparent seeks visitation rather than custody, the burden on the grandparent is somewhat lower.  Grandparents of a child only have standing to seek visitation with a child when there is already an ongoing custody dispute between the child’s parents.  In other words, a grandparent does not have standing to initiate a claim for visitation with a child who is in an intact family unit.  North Carolina Courts have held that a single parent living with his or her child is an intact family.  Fisher v. Fisher, 124 N.C. App. 442, 445 (1996).

The bottom line on third party rights to custody and visitation is that there is a paramount right of biological parents to have custody of their children. Thus, absent a finding that parents have acted in a manner which is inconsistent with the parent’s constitutionally-protected status, the right of parents to custody, care, and control of their children must prevail over the rights of third parties in a custody determination.

Who Can Be A Third Party?

Grandparents generally have standing to sue for custody of their grandchildren if they allege parental unfitness or child neglect, even if there is no ongoing custody dispute.  Sharp v. Sharp, 124 N.C. App. 357 (1996).  However, beware of the following distinction:  Although grandparents may have standing to seek custody, they may not have standing to seek visitation under analogous circumstances unless there is an ongoing custody dispute.  What does this mean?  The North Carolina Supreme Court has interpreted the grandparent visitation statute to grant standing only if there has been a custody order entered or there is an ongoing custody dispute and the family is no longer intact.

Under current North Carolina law, grandparents may be granted visitation rights, but they must carry the burden of proving that such visitation would be in the child’s best interests.  N.C.G.S. §50-13.2; Kerns v. Southern, 100 N.C. App. 664 (1990).  This can be a challenge to overcome as the United States Supreme Court has held that as long as a parent is fit, that parent’s judgment as to the appropriateness of grandparent visitation must be given special weight.  In this vein, a judge may not override a fit parent’s decision regarding third party visitation merely because he feels a better decision could be made or visitation would be in the best interests of the child.  Troxel v. Granville, 530 U.S. 57 (2000).

What other persons may seek custody or visitation rights?  A North Carolina statute seems to read as if anyone has standing to seek visitation.  N.C.G.S. §50-13.1(a).  However, the North Carolina Supreme Court has held that persons unrelated to the child have no such standing.  In fact, the court has noted in statutes involving custody and visitation, only parents and grandparents are specifically mentioned as persons with standing to seek visitation.  Peterson v. Rogers.  Nonetheless, in at least one case, a court has assumed a broader rule of standing for those seeking visitation that includes former stepparents.  Seyboth v. Seyboth, 147 N.C. App. 63 (2001).  Furthermore, the court has ruled that those who are in a well-established relationship with the child in the nature of a parent-child relationship also may have standing to seek custody.  For example, the courts have ruled that a father’s companion of five years who lived with and cared for the child had standing to seek custody.  Ellison v. Ramos, 130 N.C. App. 389 (1998).

Paternity Issues

Many times in custody or child support actions, third parties may raise questions about paternity.  The North Carolina statute on blood testing, section 8-50.1, directs that the Court shall enter blood testing upon motion.  However, the North Carolina Supreme Court has decided the statute does not give a putative or potential father the right to force the husband, who is always the presumed father under North Carolina law, to undergo blood testing.  In other words, the husband is entitled to rely on the presumption that the child of the marriage is his.  Johnson v. Johnson, 343 N.C. 120 (1996).  Furthermore, the Court of Appeals has given even more significance to this presumption by concluding that it cannot be overcome unless someone else has acknowledged paternity or has been adjudicated the father.  Jones v. Patience, 121 N.C. app. 434 (1996).

Article by Courtney Smith, Board Certified Specialist in Family Law