Third Party Child Custody,
also referenced as Non-Parent Child Custody
The true character of a society is revealed in how it treats its children. – Nelson Mandela.
Children is a topic in family law that will bring out the emotion in just about anyone. Having the honor and responsibility for another human being is an amazingly daunting task and one that should never be taken lightly. The Courts in North Carolina agree – which is why there is a multi-step process to gaining custody of a child to whom you are not the “natural parent.” There are many reasons someone other than a child’s parent may want or need to ask the Court for custody of a child. This is known as third party custody.
North Carolina General Statute §50-13.1 says that “any parent, relative, or other person…” may begin an action for custody of a child. Caselaw has since clarified that not just anyone can request custody of a child. The person (i.e. third party) must first show that they have a significant relationship with the child at issue before they are allowed to pursue custody in Court. If this burden is not satisfied by the third party, their request for custody will be denied by the Court. In finding a “significant relationship” A court will review several factors and different pieces of evidence as a whole. Evidence that has been deemed sufficient to show such a relationship includes but is not limited to: financially responsibility for the child and their daily needs, the child residing with the third party, the frequency the child is seen by the third party, and evidence of an emotional connection between the child and the third party. Once this burden is met and the Court finds that the third party has “standing” to ask for custody, the third party can move to step 2 – overcoming the Peterson Presumption.
The Peterson Presumption comes from a 1994 North Carolina Supreme Court case: Petersen v. Rogers, 337 N.C. 397, 445 S.E.2d 901 (1994). Peterson states that a parent’s constitutionally protected right to the custody, care, and control of their child is paramount and outweighs the interests of a third party. To overcome this presumption, the third party will have to show that the parent is either unfit or has acted inconsistent with their protected status as a parent. Several ways this has been achieved is to show the parent or both parents have abused, neglected, or abandoned the child or the parent or both parents have voluntarily given someone else the rights, responsibilities, or duties that are traditionally held by a parent.
The last step to a third party being awarded custody of a child is to show that awarding custody to the third party would further the best interest of the child. What benefits would the child have if the Court were to award custody to the third party? Would the emotional connection shown in step one be able to continue? Would the child’s needs, both financial and otherwise, be met while in the custody of the third party?
The process of gaining custody of a child as a third party is difficult, fact specific, and should not be attempted alone. An experienced family law attorney can help you through the process of a third party child custody action.
If you would like to learn more about third party custody rights, including grandparent rights, our Modern Legal Team is here to help.
Please note: these educational materials are based on North Carolina law where my legal practice is based. While the insights may have wide applicability, readers should consult with an attorney regarding the specific laws in their state or country.
Written by: Tiffany A. Byrd
Family is at the heart of everything I do, both personally and professionally. As a Family Law Attorney, I combine my passion for helping others with my unique journey—from growing up as the eldest child in a single-parent household to becoming the first attorney in my family. My experiences shaped my dedication to advocating for families in their most critical moments. Whether you’re building, protecting, or securing your family’s future, I’m here to help you find meaningful resolutions tailored to your needs.
