Case Law Updates – 3rd party custody

By Becky Watts

Chávez v. Wadlington, September 27, 2019, NC Supreme Court No. 366A18

October 2, 2018, COA 18-93 (third party custody, standing)

Mother and Father were separated and had an informal custody schedule wherein the children lived with Mother and visited with Father.  Plaintiff and Mother were in a multi-year relationship and during that relationship, Mother asked Plaintiff to act as a second Mother to the children.  Plaintiff acted as a second mother for about 7 years, taking on all of the responsibilities a parent would take on.  When Plaintiff and Mother broke up, Plaintiff attempted to communicate with Mother about seeing the children, but Mother refused to respond.  Finally, about a year after the breakup, Plaintiff initiated a custody action against Mother and Father. Neither Mother nor Father filed an Answer and neither responded to Plaintiff’s request for admissions.  Partway through the temporary custody hearing, Mother and Father filed a motion to dismiss Plaintiff’s complaint for lack of standing.  The trial court took limited testimony before ruling on the motion to dismiss but would not allow Plaintiff to present all of her evidence against the motion.  The trial court dismissed Plaintiff’s claim, in part because the trial court felt that at the time Plaintiff filed her complaint, she did not have the requisite relationship with the children.  Plaintiff appealed to the Court of Appeals.

The Court of Appeals affirmed the trial court’s dismissal.  The primary basis of the Court of Appeals decision was that because it had been so long since Plaintiff had seen the children, by the time she filed her complaint she no longer had standing to seek custody.  In his dissent, Judge Arrowood said that the rule that standing is determined at the time the action is filed does not mean we cannot look at Plaintiff’s relationship with the children a year prior because  Mother cannot erase the parent-child relationship by removing the children from Plaintiff’s live after separation.

Based on the dissent, Mother appealed to the NC Supreme Court.  The Supreme Court affirmed the Court of Appeals opinion without issuance of an opinion.

Thoughts:  Although the Court of Appeals focused on the timing of the filing of the action, and whether standing survived for so long after the end of the relationship between Plaintiff and Mother, based upon some of the questions the Justices asked during oral argument I believe the Supreme Court was concerned about opening the floodgates for step-parents to bring custody actions against the parents.  A person who is married to the primary custodial parent, for example, will inevitably take on some day-to-day parental responsibilities like driving the child to school, making dinner, going to baseball games, etc.  Does that step-parent then have the right to initiate a custody action against the parents?  It’s been 25 years since the Supreme Court’s decision in Petersen v. Rogers in which they held that unless a parent is unfit or has neglected the welfare of the child, the parent’s constitutionally protected status must prevail.  Only three years after Petersen, the Supreme Court in Price v. Howard held that a parent can act contrary to his or her protected status without actually neglecting the child and the question of acts inconsistent should be decided on a case-by-case basis.  Since then, our appellate courts have decided that good acts, such as inviting a non-parent to act as a parent, can be considered an act contrary to the parent’s protected status.  In my opinion, it’s not much of a leap to get to the point where you can have two parents lose their protected status when they allow a step-parent to take on parental responsibilities.  Here only one parent asked Plaintiff to take on a parental role and so it’s somewhat understandable that the Supreme Court would be reluctant to find Plaintiff had standing as against the Father, who did not specifically ask Plaintiff to take on a parental role.  I do predict, though, that it will not be long before the Supreme Court will have to address a case in which both parents have invited a step-parent to take on an active role (as opposed to the situation here in which one parent asked Plaintiff to take on an active role) and will have to decide whether to further expand third party custody standing.