Articles Tagged with unfit parent

Published on:

When analyzing custody, the issue of who has rights to custody of a minor is commonly focused on the biological parents of the child.  In the eyes of the law, under the right circumstances, biological parents may be disfavored in congruence to “third party” individuals who assert rights to custody.  Some of the most common third-party custody claims are, unsurprisingly, asserted from either the paternal or maternal grandparents.  North Carolina and much of the south, is known for having strong family ties and deep communal roots where grandparents often play a large role in raising not only their children, but their children’s children.  These relationships are often supplemental to the relationships between biological parents and their children, but in some situations grandparents end up being the de facto “mommy” and “daddy” to the minor children.  Where biological parents display continued behavior of either unwillingness or inability to effectively parent their children, grandparents step in and seek legal intervention for the sake of the children.

When it comes to the law, courts have a duty to put the best interest of the children above all others.  Under the Constitution of the United States, the biological parents of a minor have a protected interest in the custody, care, and control of their children.  This is an incredibly high bar to overcome for third-party individuals seeking to assert custodial rights in opposition to those possessed by biological parents.  The law provides for a vague and widely discretionary test for resolving custody disputes of this kind.  While the interest of the children are intended to be promoted above all others, biological parents maintain an almost equally powerful interest that will more often than not prevail over that of third-party individuals unless it can be shown that the parents are unfit or have engaged in some “conduct inconsistent with their protected status.”  Courts do not provide a bright line test in determining what conduct constitutes a violation, but some examples are behavior that leads to neglect of the children, abandonment of the children, and at times, the voluntary surrender of custody of the children.  This behavior must have a negative impact on the child or constitute a substantial risk of such impact.

Continue reading →

Published on:

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.

Continue reading →

Published on:

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

            As contentious custody cases in the Piedmont progress, it is likely that a parent may be called “unfit.” In a legal context, this word has a specific meaning, and drastic consequences should the court find a parent unfit. In this second installment on standing to apply for custody, we will examine how a parent’s rights are affected when there is an allegation of “unfitness.”

The case of Raynor v. Odom is instructive when trying to determine whether a parent is “unfit.” Raynor v. Odom, 478 S.E.2d 655 (N.C. App. 1996). Raynor was decided several years after Petersen and discusses what analysis the Court should undertake when determining unfitness. The Raynor court held that although there is no specific list of findings that determines a parent is unfit, the court must look at the totality of the circumstances in determining whether a parent can care for the needs of their child.

The minor child in the Raynor case was removed from Plaintiff Mother’s care and temporarily placed with Intervenor Foster. When Foster gained temporary custody, she took the minor child to have a pre-school assessment. At the assessment, it was discovered that the child had an articulation disorder, and was not as advanced or matured as many of the child’s contemporaries.  This fact was supported by the preschool screening report, an articulation evaluation, and a language therapy initial treatment plan. The trial court found that the child’s lack of development was a result of Plaintiff Mother not providing motivation, opportunity, or encouragement for the child’s normal and healthy development.

The trial court went on to catalog facts that demonstrated Plaintiff Mother’s unfitness to care for her child, including:

Continue reading →

Published on:

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.

Continue reading →