Domestic Relations – Child Custody –Former Unmarried Partner – Standing

Where plaintiff’s relationship with the children ended when her relationship with their mother ended, and where neither of the biological parents had taken acts inconsistent with their constitutional parental rights, plaintiff lacked standing to pursue custody.

We affirm the trial court’s dismissal of plaintiff’s complaint for shared legal and physical custody on grounds of plaintiff’s lack of standing.

Defendants were the biological parents of two children born and conceived during their marriage. Defendants separated but never divorced and have since shared physical and legal custody without a court order. Plaintiff and mother entered a “long-term, committed, exclusive relationship” for approximately seven years, during which they resided together with the children while mother had periods of custody. After same-sex marriage was recognized in North Carolina, plaintiff and mother never pursued a legal marriage. However, plaintiff assisted mother with child-rearing duties.

When mother and the children moved out of plaintiff’s residence, she filed a complaint for shared physical and legal custody of the children, alleging she was centrally involved in their upbringing and development and that mother intended to create a permanent parental relationship between themselves and the children.

We agree with the trial court that plaintiff lacked standing to pursue custody as either a legal or biological parent, or a de facto parent. We further find that plaintiff failed to sufficiently allege that either defendant committed “some act inconsistent with the parent’s constitutionally protected status.”

We further hold that, although plaintiff may have had a parental relationship with the children during her relationship with mother, that parental relationship terminated when plaintiff and mother separated and plaintiff physically evicted mother and children from her residence. We also rule that, even assuming plaintiff could show mother took acts inconsistent with her constitutional parental rights, plaintiff failed to allege any acts by father sufficient for plaintiff to overcome father’s superior rights as a natural parent.

Affirmed.

Dissent

(Arrowood, J.) I believe plaintiff alleged sufficient facts to have standing as to one of the children; however, I offer no opinion as to whether she may ultimately prevail. Although the plaintiff’s relationship with the children ended when plaintiff and mother separated, this does not prevent plaintiff from establishing a parent-child relationship for the purposes of standing. The right of the legal parent does not extend to erasing a relationship between her partner and her child which she voluntary created and actively fostered simply because after the party’s separation she regretted having done so.

Chavez v. Wadlington (Lawyers Weekly No. 011-310-18, 27 pp.) (Calabria, J.) Appealed from Durham County District Court (Fred Battaglia, J.) Rebecca K. Watts for appellant. N.C. Ct. App.