Sometimes a person enters a parental role with a child they have no biological connection to. In those instances, it is important to know what the rights of that person are. The North Carolina Supreme Court states that a nonbiological parent’s right to get custody or visitation is incredibly limited when a biological parent opposes it. Additionally, the court stated that the constitutional right of a parent prohibits a trial court from considering the child’s best interest in deciding between a parent and a nonbiological parent unless the nonbiological parent can show that the parent is unfit or has neglected the child. So even if a nonbiological parent can show that a child is better off being with the nonbiological, a court is still unlikely to grant visitation or custody solely to him or her if the biological parent opposed it.
For example, in a North Carolina Supreme Court Case, the adoptive nonbiological parents attempted to adopt a child who had lived with them since birth. The Court set aside the adoption and gave custody to the biological parents stating that a court cannot grant custody to anyone other than the biological parents so long as they are fit and proper and able to care for the child. Therefore, would be adoptive parents or other nonbiological parents have a hard time obtaining visitation or custody rights when the biological parents oppose it. However, this preference is not absolute and can be lost or never acquired. Generally, this occurs when a parent has never or does not exercise parental responsibilities associated with raising a child.
To show this, a nonbiological parent must establish that the biological parent in question is one of the following, (1) is unfit, (2) has neglected the welfare of the child, or (3) has acted in a manner inconsistent with being a parent. However, establishing one of these only grants a nonbiological parent standing and subsequently allows a court to engage in a best interest of the child analysis.
As to visitation, North Carolina General Statute § 50-13.1 supposedly grants a broad visitation to right to any party who can show that it would be in the best interest of the child. However, this is severally limited and only applies in situations where the family is not intact. This means that a nonbiological parent seeking visitation must prove that the biological parent is again one of the three requirements.
Ultimately, whether a nonbiological parent can obtain either custody or visitation rights depends upon the relationship between herself or himself and the biological parent based on the facts of the situation. If a nonbiological parent can establish that the biological parent established the nonbiological parent as a member of the family, purported him or her as a parent, and that the biological parent voluntarily gave custody to him or her without making it clear that the relationship will be terminated, then it is likely that a nonbiological parent would be able to attempt to gain custody and visitation rights of a child. However, should a nonbiological parent be unable to show this, he or she would have no right to either custody or visitation.
If you are involved in a child custody matter and need representation or simply have general questions, King Law’s team of attorneys in North and South Carolina are here to help you. Call us today at 888-748-5464 to schedule a consultation.