Standing: Who Can and Can’t File for Child Custody

The ability to file a legitimate lawsuit for child custody is extremely limited. A person must have “standing” to file, which “relates . . . to the right of the party to have the court adjudicate a particular dispute.”[1] You must have some vested interest in something before you can even ask the court to rule on the controversy.

Which Parents Can File?

Parents automatically have standing to file for custody against each other because they both have equal constitutional right to the care and custody of their child. They have equal rights to their child unless there is a court order or they have a custody agreement. However, our statutes forbid anyone who is convicted of the following crimes, and which resulted in the conception of the minor child, from filing a child custody claim: first-degree forcible rape, second-degree forcible rape, statutory rape of a child by an adult or first-degree statutory rape. [2]

Which Non-Parents Can File?

When non-parents have custody, they are usually family-members because they are likely to see the child regularly, care for the child or have a strong bond with the child. It has little to do with which relative asks for custody. Instead, it has everything to do with the behavior of the parents. A non-parent only has standing to file for custody in the event that both parents are unfit or have taken actions that are inconsistent with their constitutional right to the care and custody of their child. This standard is the same as any non-parent. This even applies to grandparents who cannot sue for custody merely by virtue of their status as grandparents, although they may seek visitation in limited circumstances.

Who Else Has Standing to File?

Proving that the parents are unfit or that they have acted inconsistently with their rights is a huge hurdle. Constitutional rights protect parents who are merely adequate, or parents who don’t do a good job of parenting. But if the non-parent proves the parents are unfit or behaved inconsistently with their rights, our statutes set out a very broad list of potential custodians: “Any . . . other person, . . . claiming the right to custody . . . may institute a . . . proceeding for the custody of such child. . .” [2]

But the non-parent cannot be a stranger to the child. He or she must have a relationship with the child that’s in the nature of a parent and child. These aren’t just magic words. To have standing, that non-parent must truly prove why the relationship is in the nature of parent and child, that they have bonded with the child. The statute also authorizes an “agency, organization or institution” to seek custody when authorized by law. This includes the NC Department of Social Services/Child Protective Services. [2]

[1] Bunch v. Britton, 802 S.E.2d 462 (2017).

[2] NC Gen. Stat. §50-13.1.