North Carolina statutes establish the basis for who can file for custody of a minor child as “(a)ny parent, relative, or other person, agency, organization or institution claiming the right to custody of a minor child.” This means that people other than biological parents can ask the courts for custody of a minor child. However, those who are not the biological parents of a minor child, but are seeking custody of that child, must show that they are acting in loco parentis (as a parent) to the minor child, and they must overcome the constitutionally protected right of the biological parent to have the care, custody, and control of the minor child.
In order for a third party to prove that they are acting in loco parentis, they must prove that they have a substantial relationship with the minor child, and that they have assumed substantial responsibility for the child, as a parent would (or should). In many cases, this means that the child has been living with the third party for a substantial period of time. But, living with a third party may not be enough, if the biological parent is also living in the home and providing care for the minor child. Both the substantial relationship, and acting as a parent, must be present in order to establish an in loco parentis relationship.
Once a third party has established an in loco parentis relationship with the minor child, in order for a third party to secure custody, the court must find that the biological parents have acted inconsistently with their constitutionally protected parental status. Our courts have described the constitutionally protected rights of parents to be as much about the parents’ rights as it is their responsibility. A parent doesn’t secure their rights purely by a biological connection to the minor child; but by performing the duties and responsibilities that are necessary to protect their parental status, such as providing for the health and welfare of their child.
If you are considering seeking custody of a child of whom you are not a biological parent, it is important to seek the help of an attorney who is experienced in this area to help you navigate the complex legal issues presented in such an action.