The majority of custody disputes involve parents. However, grandparents and other third parties may also have concerns about a couple’s children. In certain cases, the courts will recognize the rights of these third parties.
Having Standing to Seek Custody
“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. In North Carolina, a third party with no relationship to a child would have no standing to seek custody from a natural parent. However, a relationship in the form of parent-child, even in the absence of a biological relationship, will satisfy a finding of standing.
North Carolina law recognizes two grounds for a non-parent’s standing to seek custody against a parent:
- 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 she assumed parental duties for the child for some time and that there is an emotional attachment to the child. For example, this may 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. 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 can show failure to provide a safe or suitable home for the child, or the parent’s emotional instability. The following 1998 case, Ellison v. Ramos, shows how a court will determine standing in a case involving a non-parent.
Ellison v. Ramos
Yvonne Ellison and Luis Ramos never married but were “intimate companions” for five years and 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.
Yvonne also 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 found that Yvonne did not have standing to sue and dismissed her case. She appealed.
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. Such a right would conflict with the constitutionally-protected paramount right of parents to custody, care, and control of their children.”
However, 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.” 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.
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. 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.
Standing to Seek Custody from a Non-Parent
When a person or entity seeks custody of a child from a non-parent, the standing requirements are more liberal than it would be for a parent. In North Carolina, “[a]ny 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 in the Ellison case, a person does not have to have a biological relationship to a child to have a parent-child relationship. In order to establish a 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.
Allegations of Unfitness, Abuse, or Neglect
As noted, in North Carolina, relatives of a child have standing when they present evidence to the court of conduct by the biological parent indicating unfitness. Sharp v. Sharp illustrates how a court will assess claims of parental unfitness.
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.
The trial court judge initially granted temporary custody to the grandparents, but later returned them to their mother, and the grandparents filed a Motion for Relief. The court of appeals 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.”
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. The court of appeals disagreed with her and determined that grandparents have “the right to bring an initial suit for custody when there are allegations that the child’s parents are unfit.”
Seeking Custody from a Person or Institution
The standing rules that apply to parents also apply to a person or institution with parental rights, whom a party is seeking custody against (i.e. adoptive parent or state agency). A final decree of adoption terminates the parental rights of the biological parents, and grants parental rights to the adoptive parents. The biological parents then become “strangers” to the child, with no more parental rights than any other strangers.
A biological parent who has lost parent rights in favor of a state agency, or who has agreed to an adoption, also loses the right to seek custody of a child, even as an “other person.” However, the biological parent may have standing as an “other person” if both adoptive parents are deceased.
When both biological parents relinquish their parental rights to an agency, that agency has sole legal and physical custody of the child and the right to place the child in an adoptive home. Foster parents who have been caring for a child pending adoption have no standing to seek custody against the agency.
Disputes between Parents and Non-Parents
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 a parent’s custody rights are superior to the rights of a non-parent. The 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.
Additionally, the doctrine relates to a parent’s due process rights 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. The 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.
The North Carolina Supreme Court has stated that due process requires more than a presumption in favor of the parent in a custody dispute. In a 1994 case, the Court found that custody must be given to a parent unless the parent is unfit or neglected the welfare of the child. Such conduct would be considered inconsistent with parental status.
As has been stated, parental unfitness, abuse, abandonment, and neglect are all inconsistent with a parent’s protections afforded by the U.S. Constitution. But this is not an exhaustive list of the factors that may lead to a transfer of custody to a non-parent. For instance, violating the law in the presence of the children (driving under the influence) and acting violently and abusively toward the children’s mother have been grounds for transferring custody from a father to grandmother. In Rodriguez v. Rodriguez, the North Carolina Court of Appeals concluded that a mother had not lost her protected status as a parent, even though her children’s grandparents accused her of abuse and neglect.
Rodriguez v. Rodriguez
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.
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 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.
The appeals 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 court of appeals 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. For example, the fact that she and the children had lived in four locations since her husband’s death, that she had a “verbal disagreement” with her sister-in-law resulting in the police being called, as well as her being easily angered and tending to allow her voice to rise as she became angry, were all facts that weren’t positive, but did not translate into her being a bad 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.
Voluntary Non-Parent Custody
A parent’s decision to voluntarily relinquish custody of a child for a period of time may be considered inconsistent with the parent’s protected status under the Constitution.
Factors to be considered include:
- The understanding between the parent and the party taking custody at the beginning of the period;
- Intent of the parent;
- Whether the parent made clear that the arrangement was temporary and that he or she would resume custody of the child as soon as possible;
- The amount of personal contact between the parent and child;
- The parent’s financial support of the child;
- The length of time of the arrangement;
- How the parent described the arrangement to others.
On the other hand, a parent’s involuntary separation from a child, especially if the parent tries to regain custody of the child as soon as the involuntary separation is over, is not inconsistent with a parent’s protected status.
Failure to Seize Opportunity as a Parent
According to the North Carolina Supreme Court, a parent’s failure to “seize the opportunity” to be involved with their child is inconsistent with their protected status as a parent. For example, a father engaged in a custody dispute with his child’s maternal grandparents was found to have acted in a manner inconsistent with his protected status when he failed to initiate any contact with the mother after she told him he was probably the father of her child; and after paternity was established, he visited the child only seven times before the child was a year old.
Encouraging a Child to Consider a Third Party as a Parent
A parent who encourages a child to consider a third party as a parent can also cause the loss of protected status. In fact, the parent may lose the right to unilaterally sever the connection between the child and the third party. In a 2008 case, a woman was in a domestic partnership with another woman and they decided to have a child. They picked a sperm donor together, attended prenatal appointments together, tried to put the partner’s name on the birth certificate, recognized both women as parents at the child’s baptism, and shared parenting duties. The court determined that the biological mother created a permanent parent-child relationship between the child and her partner that was inconsistent with her protected status as a parent. Therefore, the court ordered joint legal and physical custody of the child to both the biological mother and her partner.
In contrast, another 2008 case in which the biological mother made the decision to have children on her own and told her partner that she intended to be their only parent, turned out a different way. The mother corrected people who referred to her partner as “mom,” and moved the children out of the home she shared with her partner when they were 18 months old. In that case, the court found there was no intent to create a permanent parent-child relationship with the partner.
Courts will consider a parent’s actions on a case-by-case basis. A single act may be found to be inconsistent with a parent’s protected status, or acts in combination or taken together may or may not suffice. For example, a father’s “lifelong alcohol problem” was not sufficient for him to lose custody, even though he had two drunk driving convictions, since the children weren’t involved in the incidents and the drinking didn’t interfere with his parenting.
In another example, a mother’s work as a topless dancer was not inconsistent with her protected status as a parent, without evidence as to her profession’s impact on her child. However, “questionable” child care arrangements, coupled with frequent moves and numerous romantic partners, and her statement that the child’s father would be “taken care of” (followed by the father’s murder) supported a finding of inconsistent conduct.