JUMPING THROUGH THE BURDEN HOOPS
A common third party custody scenario arises when a relative, often a grandparent, believes that the parents of a minor child aren’t taking care of the child properly. If there’s a custody action currently existing between the parents, whether active or inactive and an emergency does not exist, the grandparent must move to intervene to become part of the case. If granted, the grandparent may file an appropriate motion to modify the existing Order or take part in the mediation, hearings and trial. If there is an emergency, the grandparent can file a motion seeking emergency custody along with the motion to intervene. If a custody action has never been filed regarding the child, the grandparent may file his or her own lawsuit for custody against the parents.
In a custody suit between parents, the issue is which parent will “best promote the interest and welfare of the child.” (NCGS §50-13.2(a).) However, federal and state case law acknowledges that parents have a paramount right to raise their children, and that such right will not be rescinded absent “due process” (fair treatment in a court of law) which must be more than a mere presumption in favor of the parents. Third parties, such as our hypothetical grandparent must first allege and prove to the judge that the parents are “unfit” or have abandoned their constitutionally protected status as parents.
Unfitness can be found under many circumstances: abandonment; physical, sexual or extreme mental abuse against the child; neglect, drug and alcohol abuse by the parents, and acting inappropriately or violating laws in the presence of the child, have been found to satisfy this test.
A parent has a “constitutionally protected status,” but he or she might act inconsistently with that status in several ways, including: not taking action to establish a relationship with the child; encouraging the child to consider the third party a parent, and the parent treating the third party as a parent (often the case in same sex relationships); voluntarily giving up custody to a/the third party (factors include length of time of the custody period, the personal relationship between parent and child during the custody period and financial support provided the third party); essentially failing to take on parenting responsibilities.
The third party must prove that the parents are unfit, or have taken action inconsistent with the parents’ constitutionally protected status by clear and convincing evidence. Once this burden is met, the court considers the best interests of the child when awarding custody. The burden of proof on this issue is the “preponderance of the evidence” (the more convincing evidence), just as it is in a parent versus parent custody case. Yes, usually, if the third party wins on the first issue, he/she wins on the second issue as well.
The family law attorneys at Weaver, Bennett & Bland, P.A., can analyze your situation and determine if a third party custody case is advisable under your particular facts. Contact us today at (704) 844-1400.
William G. Whittaker is a partner and family law attorney at Weaver, Bennett & Bland, P.A. Contact William at Weaver, Bennett & Bland, P.A. at (704) 844-1400. The information contained in this article is general in nature and not to be taken as legal advice nor to establish an attorney-client relationship between the reader and William G. Whittaker or the law firm of Weaver, Bennett & Bland, P.A.
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