Who can sue for child custody and visitation?

It may take a village to raise a child, but the legal system doesn't think so. Legal standards generally limit who can come into court to ask for custody or visitation of a child. At the same time, judges do want to protect children. The result of this tension is a patchwork of rules that can confuse family law attorneys, much less laypeople.

Default: Parents win

For many typical child custody cases, the first step in this analysis is also the last step. In other words, parents automatically have standing to sue for custody, and parents have priority over everyone else, subject to some exceptions that we will discuss later.

[A] natural parent has a constitutionally protected paramount right in the care, custody, and control of his or her children which rises to the level of a liberty interest and is protected by the Due Process Clause of the Fourteenth Amendment.

Penland v. Harris, 135 N.C. App. 359, 362, 520 S.E.2d 105, 107 (1999). All other things being equal, then, a parent will win over anyone else in a child custody case. As with most things having to do with the law, however, there are complications.

Who is a "parent?"

If parents almost always win over non-parents, then deciding who is a parent becomes one of the most important steps in a case.

The people who biologically created the child are usually the child's parents, but there are exceptions to that rule. A sperm donor whose parental rights have been terminated is no longer a parent. A biological parent whose parental rights have been terminated, for abuse or neglect, for example, is also no longer a parent. In states that allow surrogacy, the surrogate mother, at some point in the legal proceedings, will no longer be considered a legal parent. Biology alone sometimes does not settle matters.

One increasingly common fact situation that is beyond the scope of this introductory article concerns same-sex female couples. When one person supplies the egg, which is artificially inseminated by donated sperm, and the embryo is implanted in the other person, we speak of "biological" mothers and "gestational" mothers. Unfortunately, some states have decided that only one of those can be the child's parent.

Other people can also be parents of a child. People who have legally adopted the child are the child's parents, for example. People who have been judicially determined to the parents in a parentage order under the Uniform Parentage Act are also the child's parents. These cases are comparatively easy, since a court has already bestowed the title of "parent" upon these people.

Some people that we would popularly consider to be parents are often not parents for legal purposes. Step-parents are not legal parents by virtue of being step-parents. Step-parents can be parents by adopting their step-children, or by qualifying as "de facto" parents, as we will discuss later. In many states, same-sex partners are not automatically parents, unless they have adopted, been granted a parentage order, or qualify as a "de facto" parent.

"De facto" parents

"De facto" parentage is a legal concept that is relatively easy to describe, but quite difficult to prove in court. A "de facto" parent is someone who is a parent "in fact." ("De facto" is Latin for "in fact," and lawyers like to revert to Latin to make simple things sound complicated. "De facto" parents are also called "in loco parentis," which is Latin for "in the parent's place.") When a person has taken on the parental role and parental responsibilities, or when the child looks upon a person as a parent, a court may find "de facto" parentage. See Price v. Howard, 346 N.C. 68, 83, 484 S.E.2d 528, 537 (1997).

It is important to keep in mind what a finding of "de facto" parentage does and what it does not do. A "de facto" parent has access to the court and can sue for custody. However, a "de facto" parent is not on a level playing field with a parent. The legal standard for custody fights between parents is, what is in the child's best interest? The legal standard for custody fights between a parent and anyone else, on the other hand, is the parent unfit or otherwise not entitled to the parental priority? We will discuss that in more detail later.

A whole lotta exceptions

So far, we have been discussing how parents win over non-parents in custody cases. In several places, I promised to discuss the exceptions to that rule. Here we will discuss some of those exceptions.

Grandparents can get visitation, but not custody, under certain circumstances. However, there must be a custody proceeding underway between the parents, and the child must not be living in an intact family. See North Carolina General Statutes § 50-13.1(a); Penland v. Harris, 135 N.C. App. 359, 361, 520 S.E.2d 105, 107 (1999). Grandparents who can meet the "de facto" parent test, however, can sue for custody based upon that standard.

Assuming that a non-parent has established one of the grounds to sue for custody or visitation that we have already discussed, the non-parent has one more legal hurdle to surmount before getting to the actual question of custody or visitation. The non-parent must prove that the parent is unfit, or

that the natural parent has acted in a manner inconsistent with his or her constitutionally protected status.

Id. What is acting "in a manner inconsistent" is a complicated question that is beyond the scope of this informational article. Help from an experienced family law attorney is almost certainly necessary in cases that involve this issue.

Once a non-parent has established standing to get into court, and then established either parental unfitness or acting "in a manner inconsistent," then, finally, the court can address what custody or visitation is best for the child.

Where such conduct is properly found by the trier of fact, based on evidence in the record, custody should be determined by the “best interest of the child” test mandated by statute.

Price v. Howard, 346 N.C. 68, 79, 484 S.E.2d 528, 534-535 (1997).

Practical suggestions

There are a number of things that you might be able to do to protect yourself if you find yourself in this situation. If you are able to legally adopt the child, or to be declared a parent in a parentage order, you should consider doing that. If that is not possible, you should consider entering into a custody order by consent while you and the other parent are in agreement about what is in the child's best interest. If that is not possible, a custody agreement, while not legally enforceable, might at least lay a foundation for a later "de facto" parent case, by showing that you and the other parent intended for you to be a "de facto" parent, and what you and the other parent considered to be in the child's best interest. There may be other options in your jurisdiction. You should discuss these options with an experienced family law attorney in your jurisdiction.

Disclaimer:This article, and all other materials on this blog, are provided for general information only, and are not intended to be legal advice or to substitute for the advice of an experienced attorney licensed in your jurisdiction. No attorney-client relationship is intended, nor should any such relationship be assumed. For legal advice, please consult with a competent attorney licensed in your jurisdiction.