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Who Has Standing to Apply for Custody in NC: Part 1, Constitutional Rights

By: Jennifer A. Crissman, Attorney, Woodruff Family Law Group

If you have been involved with a highly contentious custody case in the Triad, you know that family members will start coming out of the woodwork to ask for custody of the minor children. This phenomenon is even more prevalent when the parents are not adequately caring for their children. This multi-part series will examine who can have standing to apply for custody of the minor children under North Carolina law, and the analysis the Court must follow. In part one of our series, we will examine the Constitutional Rights of the biological parents, which is the bedrock for all subsequent analysis by the Court.

The seminal North Carolina case on parents’ constitutional rights is Petersen v. Rogers, 445 S.E.2d 901 (N.C. 1994). At the outset, the Petersen court recognizes that the right to conceive and raise one’s children is an essential basic civil right which is far more precious than property rights. The Court then discusses in depth both the U.S. Supreme Court’s decisions regarding parental rights to custody, as well as North Carolina case law.

With regard to U.S. Supreme Court decisions, the Petersen Court notes that the integrity of the family unit has been recognized as a fundamental right protected by the U.S. Constitution. The Supreme Court has held “It is cardinal with us that the custody, care and nurture of the child reside first in the parents…”. Prince v. Massachusetts, 321 U.S. 158 (1944). This right has been protected both by the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment, as well as under the Ninth Amendment by the U.S. Supreme Court.

           As to North Carolina, the state has long recognized that parents have a paramount right to custody, care and nurture their children. The law presumes that parents will adequately care and provide for their children and meet their obligations to their children. However, although this right is paramount, it is not absolute. The Petersen Court held that the right to custody yields where the parents are found to be unfit or to have neglected the welfare of their children. If the parents have been found by the court to have acted inconsistently with their Constitutional rights, then the court can consider what person or entity will meet the best interests of the child.

This means that biological parents have a constitutionally protected right to care for and raise their children and keep their family unit intact. The court will not disturb this constitutionally protected right unless there is a showing that the parent is acting in a way that is inconsistent with this right. Acting inconsistent with this right includes neglecting the welfare of their children, or a showing that the parent is unfit.

In the next part of our series, we will examine what is meant by the term “unfit” and what criteria the court will look at when determining if a parent is unfit.


Part 1 | Part 2 | Part 3 | Part 4