Grandparent and Third Party Custody

Synopsis: There are two ways in which a third party (not the natural or adopted parent) can be awarded custody of a child.  The first is if the parent is unfit or has neglected the welfare of the child, the second is if the parent has acted in a manner inconsistent with the parent’s constitutionally protected status.  Acting inconsistently does not require that the conduct be negative, but that the parent has made a voluntary choice to relinquish otherwise exclusive parental control to that particular third party.  There are times when grandparents do not want full custody of their grandchild but want to be able to visit with the child.  Grandparents have no right to bring an action to see their grandchildren if the grandchild lives in an intact family but, if the parents are separated and not in an intact family unit, grandparents can intervene to try to have the court award visitation time with the child.

We at Bender LeFante Law Offices have had many people come through our doors seeking custody of a child to whom they are not a parent. Most of these people are well meaning and are seeking what they consider to be a better home for a child. And even though the third party’s home may be a truly “better” home and even though a child may have many advantages in the third party’s home, that does not give the third party a right to take a child away from the child’s parent.

Courts are reluctant to allow third parties to enter into custody actions unless there is clear and convincing evidence that the parent or parents have acted inconsistently with their parental rights. Each case is fact specific. The court will base its order on the particular situation of that parent and that child. For example, the 1957 case In re Gibbons, 247 N.C. 273, 280, 101 S.E.2d 16, 21-22 (1957) recognized that the legal right of a parent to the custody of her child may yield to the interests of the child where the “parent has voluntarily permitted the child to remain continuously in the custody of others in their home, and has taken little interest in it…” But, if, for example, the parent was being treated for a serious medical condition and unable to interact with the child until the illness was treated, “voluntarily permitting a child to stay continuously with Grandma” takes on a much different meaning than if the absent parent’s actions were due to a desire to run off with a new lover or just to “go see the world.”

Between a child’s natural or adopted parents and anyone else in the entire world, the parents have a superior right to custody of their children. But the right to custody is not exclusive. “ The Due Process Clause ensures that the government cannot unconstitutionally infringe upon a parent’s paramount right to custody solely to obtain a better result for the child. As a result, the government may take a child away from his or her natural parent only upon a showing that the parent is unfit to have custody or where the parent’s conduct is inconsistent with his or her constitutionally protected status.” David N. v. Jason N., 359 N.C. 303, 608 S.E.2d 751 (2005).

What does it mean for a parent to act in a way that is inconsistent with his or her protected parental right?

One way a parent can act inconsistent is if the parent fails to shoulder the responsibilities that go along with being a parent. A natural parent’s constitutionally protected paramount interest in the companionship, custody, care, and control of his or her child is a counterpart of the parental responsibilities the parent has assumed and is based on a presumption that he or she will act in the best interest of the child. Lehr, 463 U.S. 248, 103 S.Ct. 2985, 77 L.Ed.2d 614; In re Hughes, 254 N.C. 434, 119 S.E.2d 189. Therefore, the parent may no longer enjoy a paramount status if his or her conduct is inconsistent with this presumption or if he or she fails to shoulder the responsibilities that are attendant to rearing a child. Price v Howard 346 N.C. 68, 484 S.E.2d 528 (1997).

It is NOT necessary to prove that the parent should have his or her parental rights terminated and totally and forever be no more than a stranger to the child. “However, conduct inconsistent with the parent’s protected status, which need not rise to the statutory level warranting termination of parental rights, would result in application of the ‘best interest of the child’ test without offending the Due Process Clause. Cox v Cox 590 S.E.2d 24, 2003 WL 22952120 (2003).

Within the last 50 years, social and political changes have re-defined the meaning of “family” and, accordingly, the court’s interpretation of what constitutes a family and what happens to that familial relationship when a third party who had previously taken on a role more significant than that of “someone who happens to be around the child” leaves the home. In the past the parent who was giving up the protected status had to have acted in a negative way. But now most courts hold that “When examining a legal parent’s conduct to determine whether it is inconsistent with his or her constitutionally-protected status, the focus is not on whether the conduct consists of “good acts” or “bad acts.” Rather, the gravamen of “inconsistent acts” is the volitional acts of the legal parent that relinquish otherwise exclusive parental authority to a third party.” Mason v. Dwinnell 660 S.E.2d 58 (2008).

Mason v. Dwinnell brought about the idea that a parent can act inconsistently with her protected parental rights towards just one person. In Mason v. Dwinnell the parties were a same sex couple who had mutually decided to have and raise a child together. The child called each parent “mommy” and each parent had legal rights to do all acts a parent can do. Each party was a loving and caring parent who had a good relationship with the child. Other than towards Mason, Ms Dwinnell had not given up any of her constitutionally protected rights to parent her child. And other than voluntarily giving those rights to Mason, Ms Dwinnell remained a fit and proper person to have custody of her child.

In other cases, a parent may have stopped seeing a child due to the extreme hostility of the other parent and continuous thwarting of the visitation. When the “hostile parent” was out of the picture the grandparents with whom the child and hostile parent had resided brought an action for custody. In such a case, the court may find that even though it was understandable why the parent had not had time with the child, such actions were, nevertheless, inconsistent with the protected status. This is not to say that a parent who is found to have acted inconsistently is not a fit person to have a custodial right to his or her child, only that at the time the action was filed, he had allowed others to take the primary responsibility for the care, custody, and up bringing of his child. In David N., the trial court had found that the father was a fit and proper person to care for his child, but nonetheless also found that the father had acted inconsistently with his constitutionally protected status. David N. v. Jason N., 359 N.C. 303, 608 S.E.2d 751 (2005).

It is important to understand that a finding that a party has acted inconsistent with his parental rights DOES NOT mean that the Third Party is awarded custody of the child, but that the Third Party and the Parent are on an equal footing before the court and that the court should determine who should have custody based on the best interest of the child. “Her choice does not mean that Mason is entitled to the rights of a legal parent, but only that a trial court may apply the “best interest of the child” standard in considering Mason’s request for custody, including visitation.” Mason v. Dwinnell 660 S.E.2d 58 (2008).

A third party who wants custody of a child needs to show that the parent has made a voluntary choice to relinquish otherwise exclusive parental control to that particular third party or has acted in such a manner as to have failed to shoulder the responsibilities that are attendant to rearing a child.

Cases with third parties trying to assume custody are very difficult to present to the court. We strongly recommend that you see an attorney who is an experienced family law attorney. Even “friendly” actions where the parties agree on a third party having custody on a temporary or permanent basis require artful drafting and understanding.

Grandparents: If you do not want custody of your grandchild but want to have visits with the child on a regular basis, please note: A parent has the right to decide with whom the child will associate. If your child does not want to allow you to have a relationship with your grandchild, that is your child’s right. However, if the parents are in a custody action and there is not at that time an intact family unit, you can ask to be joined to the custody action to try to be awarded a certain amount of grandparent visitation. In order for a court to consider your request, you will have to file a motion to intervene and if that motion is allowed, you will then have to show that you have an ongoing relationship with the child and that it is in the best interest of the child that the relationship continue.