We have all heard the phrase “it takes a village to raise a child.” Having a net of support when undertaking the responsibility of raising a child is a wonderful thing to have but not always easy to obtain. And once this “village” is regularly involved in a child’s life, does the law give this “net of support” custody rights?

If you looked at the first sentence of North Carolina General Statute §50-13.1, you might be concerned that anyone could seek custody of your child. Subsection (a) states, in pertinent part:  “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…Unless a contrary intent is clear, the word "custody" shall be deemed to include custody or visitation or both.”

Good, bad or indifferent, this is not the case. The judicial system has years of case law handed down from appellate courts that makes clear: the law does not allow just anyone to ask for custody of a child. In fact, the law can make it quite difficult for someone who is not a biological or adoptive parent of the child to obtain custody rights to the child.

Being a biological or adoptive parent brings along with it the right to the care, custody, and control of your child as you deem fit. It is a constitutionally protected right. As a constitutionally protected right, in order to go against what a parent wishes, a non-parent third party has a very high burden to overcome when attempting to get visitation, custody, or decision-making authority over a child. This is referred to as the  “Peterson Presumption” – click here to learn more: Peterson v. Rogers.  

“Standing” is the first thing a court will look at when a non-parent seeks custody of a child. “Standing” relates to a filing person’s ability and legal right to assert the claim. To determine “standing,” a Court looks at the non-parent’s relationship with the child. Do they have a “parent-child relationship” or something similar thereto? How much time has the non-parent spent with the child? Does the non-parent provide for the financial and day-to-day needs of the child?

The Court will also look at the status of the parent. Has the parent acted inconsistent with their constitutionally protected status as a parent? Acting inconsistent with this Peterson Presumption includes: abandoning the child with a third party, not visiting with the child when able to do so, voluntarily giving the parental responsibilities to other third parties, not providing for the financial and day-to-day needs of the child, or otherwise not stepping up as a parent.

If these burdens are met, which are high, then the Court will find that it is appropriate to move forward with an analysis of permitting a non-parent custody rights to a child over any objection of a biological or adoptive parent. The next frame of analysis: the child’s best interest.

The phrase “it takes a village” has not stuck around this long because it is wrong – we all need support throughout life. Having a “net of support” to help you parent is important; however, a parent should be cautious in turning over complete parental control and responsibilities to anyone other than the other parent. 

If you or someone you know would like to learn more about third party custody rights, our Modern Legal Team is here to help.

Please note: these educational materials are based on North Carolina and South Carolina law where my legal practice is based. While the insights may have wide applicability, readers should consult with an attorney regarding the specific laws in their state or country. 

Written by: Tiffany A. Byrd