Who Has the Right to File for Custody in North Carolina?
In order for a party to file an action for custody of a child in North Carolina under NCGS section 50-13.1 the party seeking custody must have what is called Standing. Standing is the right for a Plaintiff to bring a lawsuit. Believe it or not, prior to the NC Supreme Court's decision in Petersen v. Rogers anyone could file for custody of a child in North Carolina. The neighbor next door that doesn't know what a lawnmower is? Yep, he could have filed for custody of your kid in North Carolina prior to the Petersen decision. Some rando stranger-danger down the block? Yep, he could have filed for custody of your kid in North Carolina prior to the Petersen decision.
What Happened in Petersen That Changed Who Has Standing in Custody Actions?
The NC Supreme Court in Petersen stated that a parent has a constitutional and common law right to the care, control, and custody of the minor child. In order for a non-parent to overcome the constitutional right of a parent under Petersen the non-parent had to show that the parent is unfit or has neglected the welfare of the child. This really limited non-parents from asserting a viable claim for custody of a child until that portion of Petersen was changed in Price v. Howard, also a North Carolina Supreme Court case.
The problem the NC Supreme Court had in Petersen was one of due process (or lack thereof). The court in Price stated, “this decision requires a due-process analysis in which the parent’s well-established paramount interest in the custody and care of the child is balanced against the state’s well-established interest in protecting the welfare of children.”
North Carolina's Test for Standing in Non-Parent Custody Actions
Petersen and Price together have established the following test for standing in a non-parent custody action. If the non-parent has a parent-like relationship with the child; OR the non-parent has a biological or adoptive relationship with the child AND there are allegations of abuse, neglect, unfitness, etc. against the parent then the non-parent will have proper standing for a custody action.
To establish the first ground the non-parent may show that they teach the child, attend PTA meetings, take care of the child's medical needs, buys the child things a parent would (school books/supplies, birthday/christmas presents, etc.).
To establish the second ground the non-parent must allege a biological relationship (such as being the child’s grandparent, aunt, or uncle) and must also allege facts relating to abuse or neglect of the child by the parent – for example, a parent’s failure to provide a safe or suitable home for the child, or the parent’s emotional instability.
I Have Established Standing, Now What?
Now you have to convince the Judge that it is in the child's best interest that you have at least some custody of the child. More on the discussion of child custody here.