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Mother’s Sister Gets Custody

Webb v. Jarvis, 2022-NCCOA-499 (unpublished).


This is a case for non-parent custody. Defendant Jarvis and Sarah Webb had a child together. They were not married. The parents shared custody of the minor child pursuant to a parenting agreement. In 2015, Sarah Webb unfortunately passed from cervical cancer. At the time Sarah died, she was living with her sister, Tina Peatross, the other Defendant in this case. Presumably, Sarah Webb exercised her custodial time at the Peatross home.

Before Sarah Webb died, she expressed her wishes that the minor child live with Peatross. Jarvis consented to Webb being a guardian for the minor child. In 2017, Jarvis was arrested for drug related charges and attained habitual felon status; it was his custodial weekend when he was arrested. Plaintiff Sarah Webb’s mother and father (minor child’s maternal grandparents) filed for visitation in 2017 prior to Jarvis’ arrests. Peatross counterclaimed for custody. Jarvis filed a motion to dismiss based on standing.

The trial court in 2020 found that Peatross had standing, and that Jarvis had acted inconsistent with constitutional parental rights. Jarvis appealed.


Was Jarvis’ motion to dismiss for lack of standing correctly denied by the court?

Holding: No.

Rationale: In North Carolina, third parties, such as family members, have the ability to commence a custody action. However, the person instituting the action and claiming the right to custody must have standing. If there is standing, the determination is made pursuant to the ever-present best interests standard.

At the same time, if a natural parent is involved in the custody dispute, the law requires that their right to custody be protected by the Constitution of the United States. Thus, the best interests analysis cannot be used until the natural parent acts inconsistent with that constitutional right. There are no tests to determine when a parent has acted inconsistent—it is a totality of circumstances.

For Jarvis, he did so. He consented to Peatross being guardian. He was arrested and deemed a habitual felon, and he knew that if he was arrested he would attain that status. Jarvis knew that one more arrest could very well lead to him losing the ability to exercise custody. Even before his arrest, Peatross was the primary caregiver. Those facts supported the conclusion that Jarvis acted inconsistent with his protected status.

Lessons: Here we see some boundaries that define what acts constitute those that could lead to third-party custody. Here it was the sister who was found to have standing to make a claim for custody because she was given that ability through consent to be a guardian (meaning that she had legal decision-making authority over major life choices for the minor child), and because Jarvis acted recklessly with regard to his criminal behavior. He knew one more crime could land him in an active sentence that would cause him to lose his ability to exercise physical custody.


Third party custody cases can be very complex. Talk to a specialist if this is an issue in your custody case.