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July 29, 2011 Blog

Do Stepparents Have Custodial and Visitation Rights?

By: Stephanie J. Gibbs

When parents remarry, their new spouses may wish to adopt their new stepchildren. North Carolina law contains specific provisions that, under certain circumstances, allow stepparents to adopt their minor stepchildren (children younger than age 18). If the court approves the stepparent’s petition to adopt the children, the stepparent becomes the legal parent of the children, with the same legal rights as the children’s biological parent. If the biological parent and adoptive stepparent later divorce, the stepparent may seek custodial and visitation rights with the children; from a legal perspective, the biological and adoptive stepparent are on equal legal footing.

But what if the stepparent has not adopted the children? Can he or she seek visitation or custodial rights? What are biological or adoptive parent’s (for purposes of this article, “legal parent’s”) rights in these cases?

What Does The Law Say in North Carolina?

North Carolina statute allows “any parent, relative, or other person” to file a lawsuit for custody of a minor child. But North Carolina case law restricts the courts’ ability to award child custody in North Carolina to a nonparent or “other person.” Under North Carolina case law, a judge may allow a nonparent (such as a stepparent) to seek custody or visitation only if this “other person” has a relationship with the child that is “in the nature of a parent-child relationship.”

child holding on to parentNorth Carolina case law has established that a stepparent qualifies, under this “parent-child relationship” standard, as an “other person” who may seek custodial and visitation rights. However, even though a stepparent may be legally “qualified” to seek custody and visitation, he or she must overcome a constitutional hurdle before the court may decide whether it is in the child’s best interest that the stepparent have custody or visitation.

Federal and state cases have consistently held that legal parents have a constitutionally protected right (or “privilege”) to the “exclusive care, custody and control” of their children. The legal parent’s “privilege” includes both the right to custody and the right to make decisions about the people with whom the child spends time. Therefore, in a custody suit between a legal parent and stepparent (or “other person”), the court gives preference to the legal parent.

But stepparents and “other persons” seeking custody and visitation are not without legal rights in these cases. Although the court must presume that the legal parent has constitutionally protected rights, the stepparent or “other person” may allege facts that lead the court to find that the legal parent has waived her constitutional privilege. In other words, the stepparent seeking custody or visitation can “rebut” (overcome) the presumption that the legal parent has preference over the stepparent or any “other person” in a custody case.

To rebut this presumption, the stepparent must allege and prove facts that show the parent is either unfit or has otherwise “acted inconsistently” with his or her constitutional rights. If the stepparent makes her case and successfully overcomes this presumption , the judge can then decide whether it is in the child’s best interest that the stepparent have custody or visitation rights. Absent this threshold finding that the legal parent acted inconsistently with her constitutional privilege, however, the court may not make any determination about the best interests of the child or, it follows, award custody or visitation rights to anyone other than a legal parent.

What Does it Mean To “Act Inconsistently” With the Parental Privilege?

A judge does not necessarily have to find that a legal parent is unfit in order to grant custody or visitation to a stepparent or “other person.” A judge may find a parent is a fit and proper person to have custody of the child, but that the parent’s actions and intentions were not consistent with those of a parent wishing to retain the protected privilege. For example, a stepparent might overcome the presumption by showing that the legal parent voluntarily relinquished custody of the child to the stepparent for a period of time without making clear that this arrangement was temporary. Or, a court could find that a legal parent waived his constitutional privilege by encouraging and building a relationship between the child and stepparent that was like that of a parent and child.

child struggling with parents fightingAppellate decisions in recent years have clarified that judges should focus on whether the legal parent voluntarily chose to create a family unit and to cede to the stepparent (or “other person”) a significant level of parental and decision-making responsibility. Appellate courts have said the trial court’s focus should be on the intent and conduct of the legal parent, rather than that of the stepparent, “during the formation and pendency of the parent-child relationship.” That is, the judge must consider evidence of the legal parent’s intent and conduct during the marriage, rather than after the separation, with regard to the stepparent’s role in the child’s life.

If you are a stepparent who has not adopted your stepchildren, or you are a legal parent who has separated from your child’s stepparent, you may wish to consult a North Carolina Board-Certified Raleigh family lawyer to determine your potential custodial and visitation rights.

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Stephanie Gibbs is a North Carolina Board-Certified Specialist in Family Law, a certified Family Financial Mediator, and a former award-winning investigative journalist. She is a member of the North Carolina Chief Justice’s Family Court Advisory Commission, and the Local Advisory Committee of The Childs Advocate, a project of Legal Aid of North Carolina that seeks to give children a voice in high-conflict custody cases. If you have a question about this article, you may email Stephanie at or call her at (919) 832-8488.
The information provided on this website is for general informational purposes only. The content on this website is not intended as legal advice and should not be construed as such. The facts relating to every situation are different and you should not act or refrain from acting based upon any information provided on this website without first consulting legal counsel. To obtain legal advice tailored to your specific circumstances, please contact us to schedule a consultation with one of our attorneys.

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