General Statute § 50-13.1 controls the filing of child custody cases in North Carolina. It provides as follows: “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.” Ordinarily, child custody cases are decided upon the “best interest of the child” standard. These types of cases are complicated and having an attorney to help present your case to the Court in the light most favorable to you is important. Child custody cases become even more complicated when the person seeking child custody is not the biological parent. In those cases, the best interest of a child standard is not the first question for the Court. This article is meant to provide a basic understanding of the rules for a nonparent or third party to seek custody of a minor child.
When a child custody case involves a parent and nonparent, the first question is whether the person seeking child custody has standing to file a lawsuit. “Standing” is the term used to describe who can file a particular type of lawsuit. The North Carolina Supreme Court has said “N.C.G.S. § 50-13.1 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 the parents to custody, care and control of their children.” (Peterson v. Rogers, 337 N.C. 397, (1994)). This means, in regards to child custody, North Carolina courts have decided there are limits on who may file for child custody against a natural or biological parent. The Court further clarified the rules regarding standing of third parties to seek child custody by indicating that a third party who has no relationship with a child does not have standing to seek child custody. However, the Court has also decided a third party who has developed a parent-child relationship (even if not biological) does have standing to file for child custody. This means in order to even file for child custody, a third party must be prepared to show how the facts in their case establish a relationship sufficient to have standing.
Assuming a third party has legal standing to file for child custody, the next question is what burden of proof is required to win against a parent. North Carolina recognizes the idea that a parent has a constitutionally protected right to raising his or her child. Therefore, in a custody dispute between a parent and nonparent, the parent will automatically win child custody unless there is a showing that the natural parent is unfit or has acted inconsistently with the constitutionally protected status of a natural parent. If this showing is made, then the Court can consider the best interest of the child.