Custody and the Constitutional Right to Parent

In October 2022, the North Carolina Court of Appeals addressed whether a parent who hasn’t had contact with their child because the child had been actively removed and hidden from them still has their constitutional right to parent their child.

In the United States, a parent has a constitutionally protected right to parent their children, which includes having custody of the child and making major decisions in the child’s life. That means that the Courts are going to assume that a parent is going to act in the best interest of their child unless there is clear evidence otherwise. The State doesn’t want to step between the parent and the child, even if other people want custody and could better provide for the child. However, the right to parent your child isn’t absolute. Parents can give up that right if they are unfit – for instance, being abusive or neglectful – or if their actions are “inconsistent with their constitutionally protected status.” One of the ways parents act inconsistently with their status is to abandon their child. Someone who doesn’t take care of or take responsibility for their child in any way can hardly be called a parent, after all.

In this case, the Plaintiff Father and the Mother weren’t married but lived together and cared for the child together on and off until the child was about two years old. After their breakup, Mother and Defendant Maternal Grandmother prevented Father from contacting Mother or the child through a no-contact order. Once that order was dismissed, Father and his family tried to find the child, but Mother had moved away, changed her name, refused to contact Father or allow anyone to tell him where she was, and actively worked with Grandmother to hide the child from Father. Father regularly sent cards, gifts, and letters to Grandmother’s home for the child, which were returned to him. Mother and the child were living in NC with the child’s stepfather when Mother passed away. Grandmother immediately whisked the child away to Michigan without telling Father. As soon as Father found out through the grapevine that Mother had passed, he rushed to NC to get the child. He wasn’t able to find the child or find anyone who would tell him where she was taken, until Grandmother filed for emergency custody in Michigan. Father filed for custody in NC, wanting his daughter to come live with him and her half-sibling, who was well cared for by Father and his wife.

Grandmother argued that Father had given up his right to parent his child by abandoning the child and being an unfit parent. The trial court found that because Father made every effort to find the child, did all he could to keep contact with her, cared for her at every opportunity that he was given, and did not willingly give up any right or custody of the child, he had not willingly abandoned the child or acted inconsistently with his constitutional right to parent. There were also no signs he was unfit to care for the child. Therefore, Father still had the right to parent his child and was granted sole custody.

The Appeals Court affirmed the trial court’s findings and awarded full custody to Father. Those who get physical custody of a child unlawfully, Grandmother in this case, shouldn’t be rewarded. When someone acts unlawfully to remove a child from their parent and hide them away for a time, preventing all care, contact, or support by a parent, that time alone isn’t enough to show that that parent has acted inconsistently with their constitutional right to parent.