Three or More Parents, Part 5: Custody for Non-Legal Parents in North Carolina

For a non-legal parental figure in North Carolina, custody of a child is a complicated issue. North Carolina doesn’t have statutes that specifically address custody for a non-related, non-adoptive parental figure, so the courts have to rely on case law – cases that have been decided and explained by the Court of Appeals or the NC Supreme Court – to determine what the rules actually are for granting custody to a third party, such as a non-legal parent.

In North Carolina, people who have a substantial relationship with a child and have acted in a parent-like role can file for custody of the child, but the outcome of each case is highly fact- and judge-dependent. The court can grant a non-legal parent custody but can’t grant something equal to legal parent status.

The NC legislature tried to define a “de facto parent” in 2005 to clarify this issue. Unfortunately, that bill did not pass, so case law is our only guide. None of these cases are specifically about three-plus parent families, but the rules for granting a non-legal parental figure custody still apply.

The major case that outlines third party custody is Price v. Howard (484 S.E.2d 528 (N.C. 1997)). In Price, the North Carolina Supreme Court balanced the Constitutional rights of legal parents to raise their children with the best-interest-of-the-child standard used in custody decisions. The Court decided that if the legal parent had acted inconsistently with their responsibilities as a parent by intending to foster a parental relationship between the child and the third party, therefore ceding some of their parental rights and responsibilities to that person, the third party could be granted custody if it was in the child’s best interest.

The NC Court of Appeals has clarified that standard since then. In Mason v. Dwinnell (190 N.C. App. 209 (N.C. Ct. App. 2008)), the court determined that the parent in the case had met the Price standard of intending to foster a parental relationship through several actions: having the child with the third party, giving the child a joint last name, presenting them both as the child’s parents, signing a “parenting agreement,” signing forms together, going to all school and medical events or appointments together, and generally acting as a family unit with the third party. However, while the third party was granted custody, the court made it clear that a non-legal parental figure with custody was not equal to or the same as a legal parent.

In Estroff v. Chatterjee (190 N.C. App. 61, 660 S.E.2d 73 (2008)), the Court looked specifically at the legal parent’s intent to create a parental relationship between the third party and the child. The Court found that any person in a parent-like relationship with a child can file for custody but caring for the child and providing financial support is not enough to meet the Price test of ceding parental rights to allow the court to grant custody if the legal parent didn’t have the intent to foster the relationship.

For a non-legal parent in a three-plus parent family, it is incredibly important to establish clearly the intent of everyone in the family, preferably in writing, when bringing a child into that family. If you are the non-legal parent in a three-plus parent family, then without the legal or intended legal parents having and showing intent for you to have a parent-child relationship with the child, you won’t have any legal rights to your child should something happen. Consulting with an experienced family law attorney can help you make sure that you are taking the right steps to prove intent and protect your rights.