When parents are faced with a dispute involving
custody of their child in North Carolina, the dispute is resolved through the
courts application of the best interests of the child standard. In other
words, the court will order a custody and visitation schedule for the
parents that the court deems will be promote the child's interest
and welfare. The best interest of the child standard is also applied in
situations where two potential caregivers have a custody dispute involving
a child whose parents are not currently a part of that child's life.
Whichever is the case, North Carolina law dictates that the best interest
of the child standard be applied. This standard provides that the welfare
of the child is the "polar star" that guides the judge in deciding
how to resolve the custody issue.
However, because there is such a strong presumption in the law that a fit
parent will act in the best interest of his or her child, the legal analysis
becomes more complicated when the custody or visitation dispute is between
a parent and a nonparent third party. Before a court can even examine
whether granting custody or visitation of a child to a nonparent third
party would fit the best interests of the child standard, the nonparent
third party must overcome the presumption in favor of the actual parent.
This presumption can be overcome in cases involving abuse, neglect, unfitness,
or where a parent has acted inconsistently with his or her constitutional
right to parent the child. Once this is accomplished, a judge may then
look to whether or not granting custody or visitation to the nonparent
third party promotes the general welfare of the child and is in his or
her best interest.
However, before a nonparent can even begin to allege that a parent has
lost their protected status as a parent, whether due to unfitness, neglected
or otherwise acting in a manner inconsistent with his or her protected
status, a nonparent first must have standing to bring a claim. In order
to have standing, a nonparent must allege and prove the existence of a
relationship sufficient to show that he or she is not a stranger to the
child because, according to the court in
Ellison v. Ramos, "a relationship based on a simple assertion of interest in a child's
welfare is insufficient to establish standing." Only once a nonparent
is found to have standing to bring a claim for custody or visitation can
he or she then begin to allege unfitness, neglect, or inconsistencies
on the part of the parent.
Although not well-defined by North Carolina law, the court can consider
any past circumstances or conduct that could impact the present or future
of the child when deciding whether a parent is unfit or has neglected
the child. Courts will most likely find unfitness or neglect in situations
where there is evidence of alcohol or drug abuse by the parent, the parent
is unable to provide a safe and stable home for the child, the parent
is unable to meet even the basic needs of the child, the parent is involved
in abusive relationships, the parent is emotionally unstable, etc.
Additionally, there are a number of ways in which a court can find that
a parent has acted inconsistently with his or her right to the care, custody,
and control of their child. Courts have held that while conduct that would
be sufficient to terminate a parent's rights would likely support
a finding that the parent has acted inconsistently with their protected
parental status, a nonparent third party need not allege conduct that
arises to the level necessary for termination of parental rights. Furthermore
courts in North Carolina have found that temporary relinquishment of custody
of a child is not sufficient to support the conclusion that a parent has
acted inconsistently with his protected status as parent. However, they
have indicated that a relinquishment not intended to be temporary may
well amount to a waiver of constitutional rights.
Because the legal presumption that fit a parent will act in the best interests
of the child is so difficult to overcome, and because cases involving
custody and visitation of children, especially those that involve nonparent
third parties, are so fact specific, courts will make their determinations
on a case-by-case-basis. Nonparent third parties are often faced with
an uphill battle when involved in custody and visitation cases; which
is why being able to rely on a skilled family law attorney in these matters
is so important. Dummit Fradin Law Firm has many highly skilled
family law attorneys who are well equipped to handle your case.