Overcoming a Parent’s Constitutional Right to Care for their Child

Custody and visitation disputes between parents focus on the best interest of their child, but this is not the standard used when non-parents are involved. North Carolina only allows non-parents to file for custody or visitation in limited circumstances. When these issues between a parent and a non-parent are litigated in court, additional elements must be considered before a parent’s rights are taken away.

The Peterson Presumption

The Peterson presumption is applied in North Carolina custody disputes between parents and non-parents and is a legal precedent that favors a natural or biological parent over a non-parent. The Peterson presumption states that biological parents have a protected right to the custody, care, and control of their children. This right can only be taken away if parental unfitness or neglect is proven.

When custody is in question between parents, this presumption is not relevant because both parties have the constitutional right to care for their children. This may sound straightforward, but the lines can easily become blurred in complex custody cases.

Everette v. Collins

In Everette v. Collins, the Peterson presumption was at the center of a custody and visitation order appeal.

Prior to this case, the parties’ child lived primarily with the mother and visited the father and his mother (the grandmother) every other weekend. Both parents were in the military, and the child would occasionally spend months at a time with the grandmother. In 2002, when the child was three years old, the mother began having seizures. Her condition worsened, and she allowed the child to stay with the grandmother while she worked on getting her seizures under control.

In 2003, the mother experienced a series of severe medical events that led to a months-long coma and severe burns all over her body, including in the stem cells of her eyes, causing blindness. The mother underwent rehabilitation while the child continued to stay with the father and the grandmother.

The father and grandmother filed for custody, and a temporary order was entered granting custody of the child to the father and grandmother. A permanent order was later entered awarding joint legal custody to the mother and father, primary physical custody to the father, and visitation for the mother. This order also approved the child’s placement with the grandmother, which meant that the child could continue living with the grandmother as they had been due to the mother’s health condition and the father’s military service.

The mother appealed, and the issues she raised focused on the Peterson presumption, specifically that the trial court violated her rights by granting placement with the grandmother. The Court of Appeals determined that placement is not the same issue as custody, so the Peterson presumption did not apply.

The grandmother was not given custody. The father was granted primary physical custody of the child, and the mother was granted liberal visitation and joint legal custody. The parties in this case were both natural parents, and the mother’s constitutionally protected rights as a parent were not affected. The Court of Appeals affirmed the lower court’s ruling.

The Everette case highlights the complex nature of custody and visitation disputes in North Carolina and reinforces the need to have a qualified Greensboro divorce lawyer on your side.