Understandably, child custody is one of the most emotional, and most important issues that any couple has to address in a divorce case. After all, there is nothing more important to most parents than their children. Understandably, the huge majority of custody disputes in North Carolina involve parents. However, sometimes there are extenuating circumstances in which grandparents and other third parties also have concerns about the custody of children. Sometimes, these parties, for any number of reasons, wish to seek custody or visitation.
In North Carolina, as in all states across the country, the rights of the parents are usually paramount. A parent’s due process rights are protected under the 14th Amendment of the U.S. Constitution, which protects against unfair process in the operation of state laws. The Constitution protects a parent’s right to the custody, care, control, and education of a child, and indeed, the United States Supreme Court has spoken to the importance of a parent’s rights to the care, custody, and nurturing of the child, and has said that such rights reside first with the parents of the child.
Likewise, the North Carolina Supreme Court has repeatedly recognized the superior rights of parents with respect to their children. In certain cases, however, if particular circumstances exist that warrant an arrangement which is different from the normal preference given to the parents, the courts will recognize the rights of these third parties. Understanding a bit about when and how grandparents and other third parties might bring these requests before the court can be helpful.
Statutory Authority
North Carolina has four statutes under which grandparents may be able to seek visitation and/or custody of their grandchildren:
- N.C. Gen. Stat. §50-13.1(a) states that: “Any parent, relative, or other person, agency, organization or institution claiming the right to custody of a minor child may institute an action or proceeding for the custody of such child, as hereinafter provided.”
- N.C. Gen. Stat. §50-13.2(b1) reads: “An order for custody of a minor child may provide visitation rights for any grandparent of the child as the court, in its discretion, deems appropriate. As used in this subsection, “grandparent” includes a biological grandparent of a child adopted by a stepparent or a relative of the child where a substantial relationship exists between the grandparent and the child….”
- N.C. Gen. Stat. §50-13.2A states that: “A biological grandparent may institute an action or proceeding for visitation rights with a child adopted by a stepparent or a relative of the child where a substantial relationship exists between the grandparent and the child. Under no circumstances shall a biological grandparent of a child adopted by adoptive parents, neither of whom is related to the child and where parental rights of both biological parents have been terminated, be entitled to visitation rights. A court may award visitation rights if it determines that visitation is in the best interest of the child…”
- N.C. Gen. Stat. §50-13.5(j) reads: “In any action in which the custody of a minor child has been determined, upon a motion in the cause and a showing of changed circumstances pursuant to G.S. 50-13.7, the grandparents of the child are entitled to such custody or visitation rights as the court, in its discretion, deems appropriate. As used in this subsection, “grandparent” includes a biological grandparent of a child adopted by a stepparent or a relative of the child where a substantial relationship exists between the grandparent and the child. Under no circumstances shall a biological grandparent of a child adopted by adoptive parents, neither of whom is related to the child and where parental rights of both biological parents have been terminated, be entitled to visitation rights.”
Establishing Standing to Seek Custody
To bring any claim before the court, a party must have “standing” to do so. Understandably, legal terms can often be confusing and complex, but in this case, “standing” simply means that a person has a right or interest that the law recognizes and protects. If a person lacks standing, a court will not grant that person the relief he or she seeks, and will not hear his or her case.
In North Carolina, a third party with no relationship to a child would have no standing to seek custody from a natural parent. However, if the third party can establish that they have a parent-child relationship with the child in question, even in the absence of a biological relationship, a court may find that sufficient standing exists. Essentially, North Carolina law recognizes two grounds for a non-parent’s standing to seek custody against a parent:
- In cases where the non-parent has a parent-like bond with the child; or
- The non-parent has a biological or adoptive relationship with the child and there are allegations that the parent is abusive or otherwise unfit.
To meet the first ground, the non-parent must provide facts that show he or she assumed parental duties for the child for some time and that there is an emotional attachment to the between the third party and the child. This may, for example, be shown if the non-parent takes the child to school, attends parent-teacher conferences; buys the child all clothing and other necessities; and/or takes the child to medical and dental appointments.
To meet the second ground, the non-parent must show a biological relationship (i.e. they are the child’s grandparent, aunt, or uncle) and must also show facts relating to abuse or neglect of the child by the parent. For example, a non-parent may show, through proof provided to the court, that the parents failed to provide a safe or suitable home for the child, or are otherwise emotionally unstable or unfit. It should be noted that the standing rules that apply here also apply to a person or institution with parental rights, whom a party is seeking custody against (i.e. an adoptive parent or a state agency).
Understanding How Courts Determine Standing: A Look at Ellison v. Ramos
A brief look at 1998 case entitled Ellison v. Ramos, 517 S.E.2d 891 (1988) is illustrative and helpful to understanding how a court might determine standing in a case involving a non-parent. In that particular case, Yvonne Ellison and Luis Ramos never married but were “intimate companions” for five years, and they lived together for under a year. Luis was the father of SolMarie Ramos. During the time they were together, Yvonne “mothered the child.” SolMarie’s biological mother was in a comatose and vegetative state since her daughter’s birth.
For three years, SolMarie lived with her grandparents, then lived with her father for four years, but also stayed at Yvonne’s apartment about five days a week. She then went to live with her father and his parents for about a year, and continued to stay at Yvonne’s five days per week. Then for almost a year, she lived exclusively with Yvonne.
Luis and Yvonne eventually ended their relationship, but SolMarie continued to live with Yvonne until Luis took her to live with his parents in Puerto Rico. SolMarie told Yvonne that she didn’t want to live with her grandparents. Additionally, SolMarie was diagnosed with Type 1 Diabetes. Yvonne claimed that the girl’s grandparents, who were in their 70s, did not know how to provide her with proper care for her diabetes, and that she was hospitalized in Puerto Rico as a result.
When Yvonee brought a claim seeking parental rights with respect to the child, she claimed that while she and Luis were together she was the responsible “parent” for Yvonne. She claimed that she took the child to medical appointments and school, attended parent-teacher conferences, provided in-home care and treatment for her diabetes, and bought her clothes, school and medical supplies, toys, and books. Yvonne wanted SolMarie returned to the U.S., and an award of custody to Yvonne.
The trial court reviewed the facts of the case and ultimately found that Yvonne did not have standing to sue and dismissed her case. She appealed. Upon reviewing the matter, the appeals court noted that North Carolina law “was not intended to confer upon strangers the right to bring custody or visitation actions against parents of children unrelated to such strangers. In so finding, the court noted that conferring any such right upon a stranger would conflict with the constitutionally-protected paramount right of parents to custody, care, and control of their children.”
Nevertheless, the court determined that “a relationship in the nature of a parent and child relationship, even in the absence of a biological relationship, will suffice to support a finding of standing.” In this particular instance, the court found that Yvonne had standing to seek custody of the child because her complaint alleged facts that showed a relationship with the child in the nature of a parent-child relationship. In so finding, the court noted that if a biological parent has taken actions that are “inconsistent with the constitutionally protected status of a natural parent,” then custody between the natural parent and a non-parent should be determined under the best interests of the child standard.
In this particular case, the court noted that Luis placed his child in the custody of his parents, who were not properly caring for her, and that he had given up custody to others, including Yvonne and his parents, on several occasions. The court found this inconsistent with his protected status as a parent. For these reasons, the court of appeals reversed the trial court and sent the matter back for further proceedings.
As in the Ellison case indicates, a person does not have to have a biological relationship to a child to have a parent-child relationship. In order to establish a non-biological parent-child relationship, the adult and child must have lived together for a significant amount of time and the adult must have assumed parental-type responsibilities. In Ellison, Yvonne established that through the proof provided of her ongoing relationship and care for Sol-Marie, and the consent that Luis gave to that relationship over a lengthy period of time.
Making Allegations of Unfitness, Abuse, or Neglect – A Look at Sharp v. Sharp
As noted, in North Carolina, relatives of a child may also have standing to bring a claim for custody when they present evidence to the court of conduct by the biological parent that indicates unfitness, abuse, or neglect in some way. The case of Sharp v. Sharp, 477 S.E.2d 258 (1996) provides a helpful illustration of how a court will assess claims of parental unfitness.
In this case, Jane and Dennis Sharp were the parents of Tamula-Jean Sharp, and the grandparents of Tamula-Jean’s two children, Samantha and Amanda Lynn. Jane and Dennis sought temporary custody of their grandchildren. The children were born out of wedlock to different fathers, and the fathers were not involved in their lives.
Jane and Dennis alleged that their daughter failed to find appropriate housing for the children, that she had relationships with several men, that she moved around a lot between North Carolina and Pennsylvania, and that she had not supported the children while they were living with their grandparents. Jane and Dennis also claimed that there was a “substantial risk of harm” to the children if they remained in their mother’s custody because she was not emotionally stable enough to care for the children.
After reviewing the facts of this case, the trial court judge initially granted temporary custody to the grandparents, but later returned them to their mother. When the court did so, the grandparents filed a motion for relief. Tamula-Jean, the children’s mother, argued that her parents should be limited to making allegations of abuse or neglect to the North Carolina Department of Social Services – not to the court.
Upon reviewing the motion for relief and the mother’s response, the appellate court noted that “[w]hile the best interest of the child standard would apply in custody disputes between two parents, in a dispute between parents and grandparents there must first be a finding that the parent is unfit.”
The court of appeals ultimately determined that grandparents have “the right to bring an initial suit for custody when there are allegations that the child’s parents are unfit.”
It should be noted, however that even in cases where the grandparents may be found to have standing to bring an initial suit for custody, courts do give weight to the superior rights of parents, and look very closely at allegations of unfitness, as the case of Rodriguez v. Rodriguez indicates.
The Superior Rights Doctrine: A Look at Rodriguez v. Rodriguez
As we have noted, in a custody dispute between a parent and a non-parent, a court must recognize the “superior rights doctrine” in addition to the best interests of the child standard. Under the superior rights doctrine, courts recognize that parental custody rights are superior to the rights of non-parents, a doctrine is based on the idea that parents and children have a unique bond, and that maintaining this bond is in the best interest of the child.
In the case of Rodriguez v. Rodriguez, 710 S.E.2d 235 (2011), Angel and Carol Rodriguez sought custody of their grandchildren from Michelle Rodriguez, their daughter-in-law, after their son died in 2007. In 2008, the Brunswick County Department of Social Services filed a petition claiming that the children were abused, neglected, and dependent and removed them from Michelle’s custody. Ultimately, however, the juvenile court found that the children were not abused or neglected and they were returned to Michelle.
In 2010, a trial court determined that Michelle had “acted inconsistently with her constitutionally protected status as a parent” and that it was in the children’s best interest for primary custody to be with her, but secondary custody with the grandparents, in the form of visitation. Michelle appealed.
The North Carolina Court of Appeals, in reviewing the case, noted the following facts: In 2008, one child’s school nurse reported to the principal that the child had some bruising. The Department of Social Services was notified. As a result, the two children were removed from Michelle’s custody and placed in the custody of Social Services. The court determined that the children were dependent since their mother was unable to care for or supervise them due to emotional issues caused by factors like their relocation to North Carolina, the traumatic death of her husband (the children’s father), and the physical abuse by her husband.
Upon considering all of the facts in the case, the appellate court determined that the fact that Michelle’s children were deemed dependent was not sufficient alone to show that she acted inconsistently with her status as a parent. There was no finding by the lower court that Michelle had voluntarily engaged in any conduct that would trigger forfeiting her parental rights. The appellate court noted that even though several facts looked bad, or cast Michelle in a negative light, they did not show that she was unfit as a parent. The court of appeals concluded that since Michelle had not acted inconsistently with her status as a parent, there were no grounds for the grandparents to be awarded visitation.
As the Rodriguez case clearly indicates, a parent’s superior rights carry a great deal of weight in the courts of North Carolina, and across the country.
Additional Questions About Custody? Contact The Law Office of Dustin McCrary Today
Certainly, child custody matters can be complicated, both emotionally and legally. Whether you are a grandparent or a third party who would like to seek visitation with or custody with children you love and care for, or a parent who has concerns about protecting your legal rights, at the Law Office of Dustin McCrary, we can help. We understand the nuances and complexities of family law in North Carolina, and we have years of experience applying that knowledge in countless cases for clients just like you. We understand child custody and visitation issues. We are passionate about helping our clients with these issues, and any others they may encounter during the divorce process. We would be honored to help you as well. Call us today.