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Who Can Apply for Custody in NC: Part 3, When the Best Interest Standard Doesn’t Apply

By: Leesa M. Poag, Attorney, Woodruff Family Law Group

In a typical child custody case, the mother and father of a child are seeking the intervention of the court to settle their dispute over who should be granted custody of their child.  Though this is the situation most often facing family law attorneys throughout the Triad, the cases become more complex when one of the parties seeking custody of a child is not a biological parent of that child.

This is the situation that the North Carolina Supreme Court had to address in 2003 in the case of Owenby v. Young.  In 1989, Fred and Priscilla Young were married, and two children were born thereafter.  Four years after marrying, Fred and Priscilla divorced.  Upon their separation, the former spouses executed a separation agreement that granted Ms. Young primary custody of the minor children, and secondary custody to Mr. Young.

For seven years, the parties acted and shared custody of the children under this agreement.  However, in April of 2000, tragedy struck when Ms. Young was killed in a plane crash.  At this time, the minor children were 10 and 11 years old.  Following Ms. Young’s death, Mr. Young moved the children in with him and began to exercise sole custody of the children.

But this arrangement would not last long.  After the children had lived with their father for a few weeks, Ms. Young’s mother, Priscilla Owenby, filed a complaint with the court seeking custody of the children on both a permanent and ex parte basis.  An order was entered by the court that same day granting temporary custody of the children to Ms. Owenby.  Mr. Young then filed an answer to Ms. Owenby’s complaint and a counterclaim for custody of the children.  The case came on for hearing in the trial court in December of 2000.

Unlike cases between natural parents where the paramount concern and controlling standard is the best interest of the child,  Ms. Owenby faced a steeper challenge.  As a third party seeking custody, Ms. Owenby was first forced to prove to the court that Mr. Young, as the biological father of the children, had acted inconsistently with his constitutional right to the care, custody and control of his children.

Ms. Owenby had several contentions as to why Mr. Young was unfit to parent the children including allegations of alcohol abuse, that Mr. Young did not have steady employment, and that he was financially unstable.

The trial court addressed the question of unfitness and found that, though there was some truth to the allegations that Ms. Owenby had made, these issues did not rise to a level where the court could find that Mr. Young had acted inconsistently with his constitutional right to parent his children.  The trial court dismissed Ms. Owenby’s complaint and dissolved the temporary order that had granted her custody of the children.

The case was brought before the North Carolina Court of Appeals in 2002.  The Court of Appeals found that Mr. Young had acted inconsistently with his right to parent and as a result, that the best interest of the child standard should be applied to determine custody. The Court of Appeals remanded the case to the trial court to determine custody based on the best interest standard.

The North Carolina Supreme Court reviewed this case in 2003.  The Court again stated the paramount consideration in third-party custody cases is the question of whether the natural parent has acted inconsistently with their constitutional right to parent their children.  The Court found that the trial court had properly considered all of the allegations made by Ms. Owenby and, despite all of those allegations, failed to find by clear and convincing evidence that Mr. Young had acted inconsistently with his constitutionally protected right as a parent.  The Court pointed out that since the best interest standard is only implicated after a finding of unfitness of the natural parent has been made, it was improper for the Court of Appeals to reach the best interest standard in this case at all.  The Supreme Court reversed the Court of Appeals decision, and remanded to the trial court to reinstate their order granting Mr. Young custody of his children.


Part 1 | Part 2 | Part 3 | Part 4