Child Custody for Grandparents and Other Non-Parents
Most custody disputes involve parents. However, grandparents and other third parties may also be concerned about a couple’s children, and in certain cases courts will recognize the rights of these third parties.
Standing to Seek Custody from a Parent
The legal concept of “standing” means that a person has a right or interest that the law recognizes and protects. If a person lacks standing, a court will not give that person the remedy he or she seeks.
Under North Carolina law,
A third party who has no relationship with a child does not have standing … to seek custody of a child from a natural parent; however, a relationship in the nature of parent and child, even in the absence of a biological relationship, will suffice to support 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 relationship with the child; or
- The non-parent has a biological or adoptive relationship with the child and there are allegations of abuse, neglect, unfitness, etc. against the parent.
To establish the first ground, the non-parent must allege facts showing that he or she has assumed parental duties for the child for some period of time and has 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;
- Teaches the child,
- Buys the child all of her or his clothes and other necessities; and/or
- Takes the child to medical and dental appointments.
To establish the second ground, the non-parent must allege a biological relationship (such as being the child’s grandparent, aunt, or uncle) and must also allege facts relating to abuse or neglect of the child by the parent – for example, a parent’s failure to provide a safe or suitable home for the child, or the parent’s emotional instability.
The following 1998 case illustrates how a court will determine standing in a case involving a non-parent.
Ellison v. Ramos
Yvonne Ellison and Luis Ramos were never married but were “intimate companions” for five years and lived together for a little less than a year.
Luis was the father of SolMarie Ramos. During the time that the parties were together, Yvonne “mothered the child.”
Yvonne’s biological mother was in a comatose and vegetative state since her daughter’s birth.
For three years, SolMarie lived with her maternal grandparents, then for four years she lived with her father, but also stayed at Yvonne’s apartment about five days per week. Then she lived 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.
After Yvonne and Luis broke up, SolMarie continued to live with Yvonne until Luis took his daughter to live with his parents in Puerto Rico. SolMarie told Yvonne that she didn’t want to live in Puerto Rico with her grandparents.
SolMarie was diagnosed with Type 1 diabetes. Yvonne claimed that the girl’s grandparents, who were in their 70’s, did not know how to provide her with proper care for her condition, and that she was hospitalized in Puerto Rico as a result.
Yvonne claimed that during the time she and Luis were together she was the responsible “parent” for Yvonne. She took her to medical appointments and to school, she attended parent-teacher conferences, she provided in-home care and treatment for her diabetes, and she bought her clothes, school supplies, medical supplies, toys, and books.
Yvonne’s sought to return SolMarie to the US, and an award of custody to Yvonne. The trial court found that she lacked standing 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 held 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 concluded that Yvonne’s complaint alleged facts to show a relationship with SolMarie in the nature of a parent-child relationship, and thus that she had standing to seek custody.
The court noted that if a biological parent has taken actions “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 had placed SolMarie 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 to obtain custody of a child from a non-parent, the standing requirements are far more liberal.
Under the North Carolina statue, “[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…”
Persons in a Parent-Child Relationship
As seen in the Ellison case, a person does not have to have a biological relationship to a child in order to have a parent-child relationship.
In order to establish a parent-child relationship, the “parent” and child must have lived together for a significant amount of time – at least several years — and the adult must have assumed parental-type obligations.
Biological/Adoptive Relationship and Allegations of Parental Unfitness, Abuse, or Neglect
As noted above, North Carolina law confers standing to a biological/adoptive relative of a child when there are allegations of conduct by the biological parent inconsistent with the parent’s constitutionally protected parental rights.
The following 1996 case illustrates how a court will evaluate claims of parental unfitness.
Sharp v. Sharp
Jane and Dennis Sharp were the parents of Tamula-Jean Sharp, and the grandparents of Tamula-Jean’s two minor children.
In 1995, Jane and Dennis sought temporary custody of the children – Samantha (3) and Amanda Lynn (18 months). The children had been born out of wedlock to different fathers, and the fathers were not involved in their lives.
Jane and Dennis alleged that Tamula-Jean had failed to find suitable housing for the children, that she had relationships with several men, that she moved around in both North Carolina and Pennsylvania, and that she had not supported the children while they were living with their grandparents.
They claimed that there was a “substantial risk of harm” to the children if they remained in the custody of their mother, as she was not emotionally stable enough to care for them.
The trial court judge initially granted temporary custody of the children to their grandparents, but at a later hearing returned them to their mother. 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 argued that her parents should be limited to making allegations of abuse or neglect to the North Carolina Department of Social Services.
The court of appeals disagreed, holding that grandparents do 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 with Parental Rights
The same rules about standing that apply to parents also apply when custody is sought against a person or institution which has parental rights, such as an adoptive parent or state agency.
A final decree of adoption will terminate the parental rights of the biological parents, and confer parental rights on the adoptive parents. The biological parents will 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 consented 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 have died.
When both biological parents give up their parental rights to an agency, then that agency has sole legal and physical custody of the child and the right to place the child in an adoptive home. The foster parents who have been caring for a child pending adoption have no standing to seek custody against the agency.
Constitutional Issues in Disputes between Parents and Non-Parents
In a custody dispute between a parent and a non-parent, in addition to considering the best interests of the child a court must also recognize the “superior rights doctrine.”
Under this doctrine, courts acknowledge that the custody rights of a parent are in general superior to the rights of a non-parent.
The doctrine is based on the assumption that parents and children have a unique bond, and that maintaining this bond is in the child’s best interest.
The superior rights doctrine also relates to a parent’s due process rights under the 14th Amendment to the US Constitution, which protects against unfair process in the operation of state laws.
A parent’s right to the custody, care, control, and education of a child is a substantive Constitutional right. As the US Supreme Court has said,
It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.
According to the North Carolina Supreme Court, due process requires more than a mere “presumption” in favor of the parent in a custody dispute. In a 1994 case, the Court concluded that custody must be given to a parent unless the parent was unfit or had neglected the welfare of the child. Such conduct is considered inconsistent with parental status.
Conduct Inconsistent with Parental Status
As noted above, parental unfitness, abandonment, abuse, and neglect are considered to be inconsistent with a parent’s constitutionally protected status, but this is not an exhaustive list of the factors that may lead to a transfer of custody to a non-parent.
For example, violating the law in the presence of the children (driving with a license revoked for 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 the following 2011 case, the North Carolina court of appeals held that a mother had not lost her protected status as a parent, despite the children’s grandparents’ allegations of her abuse and neglect.
Rodriguez v. Rodriguez
Angel and Carol Rodriguez sought custody of their grandchildren from their daughter-in-law, Michelle Rodriguez, after their son died in 2007. In 2008, the Brunswick County Department of Social Services filed a petition alleging that the children were abused, neglected, and dependent and they were removed from Michelle’s custody.
The juvenile court determined that the children were not abused or neglected and returned them to their mother.
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 best interests of the children for primary custody to be with her, with secondary custody in the form of visitation with the grandparents.
The court of appeals noted the following findings of fact by the trial court:
- In 2008, one child’s school nurse reported to the school principal that a child had suffered some bruising. This was reported to the Department of Social Services.
- As a result, the two children were removed from Michelle’s custody and placed in the custody of Social Services.
- The children were adjudicated to be dependent in that their mother was unable to provide for their care and supervision due to emotional issues caused by factors including their relocation to North Carolina, the traumatic death of her husband (the children’s father), and the physical abuse she had suffered at her husband’s hands.
The court of appeals held that a finding that Michelle’s children had been adjudicated dependent was not alone sufficient to establish that she had acted in a manner inconsistent with her parental status. The trial court had failed to find that she had voluntarily engaged in conduct that would trigger forfeiture of her parental rights.
The court of appeals noted that the following findings of fact, although they cast Michelle in a negative light, did not show that she was unfit as a parent:
- She and the children had lived in four locations since her husband’s death.
- She had a “verbal disagreement” with her sister-in-law which resulted in the police being called.
- She was “high-strung, easily angered and tends to allow her voice to rise as she becomes angry.”
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 voluntarily giving up custody of a child for a period of time may be considered inconsistent with the parent’s protected status.
Factors to be considered include:
- The understanding between the parent and the party taking custody at the beginning of the period;
- The intent of the parent;
- Whether the parent made clear that the arrangement was temporary and that he or she would take 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; and
- How the parent presented the arrangement to others.
A parent’s involuntary separation from a child, especially if the parent seeks to regain custody of the child as soon as the period of 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, failure to “seize the opportunity” to become involved with a child as a parent is inconsistent with a parent’s protected status.
For example, a non-marital 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 testing established that he was, in fact, the father, 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’s encouraging a child to consider a third party as a parent can also lead to the loss of protected status, such that the parent loses the right to unilaterally sever the connection between the child and that third party.
In one such case from 2008, a woman established a domestic partnership with another woman and they decided together to have a child. They picked a sperm donor together, went to prenatal appointments together, tried to put the partner’s name on the birth certificate, recognized both partners as parents at the child’s baptism, and shared parental responsibilities. The court found that the biological mother had created a permanent parent-child relationship between her child and her partner, inconsistent with her protected status. The trial court thus ordered joint legal and physical custody of the child to both the biological mother and her partner.
In contrast, in another 2008 case the biological mother made the decision to have children on her own and told her partner that she intended to be their only parent. She corrected people who referred to her partner as “mom,” and moved the children out of the home she shared with the partner when they were 18 months old. In that case, the court found no intent to create a permanent parent-child relationship with the partner.
Courts will consider a parent’s activities 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 cumulatively may be sufficient – or not.
- 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.
- A mother’s work as a topless dancer, by itself, was not inconsistent with her protected status as a parent, without evidence as to her profession’s impact on her child. However, her “questionable” child care arrangements, combined 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.