Three or More Parents, Part 4: Custody for Non-Legal Parents
As in any traditional family, no one goes into a family with three or more parents expecting it to fall apart but, like any traditional family, separation is always a possibility down the line. For those persons who live in a state that doesn’t allow them to become a legal parent to their child, such as in North Carolina, there are steps that a non-legal parent should take to help protect their custody rights should the worst happen.
If you are a non-legal parent and custody of your child becomes an issue, you will have to rely on the de facto or psychological parent doctrine. Custody is typically a battle between the legal parents of a child. There’s a presumption that the legal parents’ decisions about visitation or custody of their child is what’s in the child’s best interests, with the court only stepping in if there is a disagreement. However, in most states, including North Carolina, this presumption can be overcome by clear and convincing evidence showing that a person is a de facto parent for the child. A de facto parent is typically defined as a person who, with the intent and support of the legal parent to form a parent-like relationship, lived in the same household as the child and assumed responsibility for the child, including the child’s care and support, without expectation of compensation, for long enough to establish a bond and a dependent relationship with the child.
Ten states explicitly recognize de facto parents as parents. 21 states, including North Carolina, recognize de facto parents when granting visitation or custody in open custody cases. 14 states have conflicting cases on de facto parent status, making the law very unclear. Five states don’t recognize de facto parenthood at all. If your family plans to relocate to a new state, be sure that you know that state’s stance on granting custody to de facto parents.
As a non-legal parent, you need to start protecting your claim to your child before that child even joins your family. If the child is being conceived by assisted reproductive technology and you are acting as a donor or gestational carrier, read over everything you sign very carefully. Almost all donor or carrier contracts include clauses giving up rights to parenthood and future custody claims. Make sure that the clinic you are working with will allow alternative contracts acknowledging your intent to participate as a parent of the child.
Also make sure you have a written, signed parenting agreement. It has been helpful in many de facto parent cases to create a document expressly saying that the legal parent intends for the non-legal parent to act as a parent and the non-legal parent intends to take on the responsibilities of the child. It is best to have the document prior to birth or adoption and then to reaffirm on paper after the child has joined your family. Over the course of your child’s life, ensure that your involvement in your child’s care is clear and provable – take pictures, ensure that some of the child’s expenses are paid out of your bank account, etc.
While all of this preparation may seem pessimistic, it is always better to be prepared and protected and not need it than to go into a bad situation unprepared. If the intended legal parents of the child refuse to protect you as your child’s acting parent along with them, think long and hard about whether you are willing to take on so much risk and whether forming this family is the best idea for you. Once children are involved, a family is forever and yours is worth taking steps to protect.