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Woman who evicted partner can’t sue for co-custody of kids

A woman who had a long-term, committed relationship with her former same-sex partner does not have standing to seek custody of the former partner’s biological children, a divided North Carolina Court of Appeals panel has ruled.

Emily Chavez alleges that she had a seven-year-long “committed and exclusive” relationship with Serena Wadlington during which the two women lived together and Chavez assisted Wadlington with the raising of her two children. Wadlington was separated from the child’s biological father, but the two remained legally married and shared legal and physical custody of the children in a cooperative manner.

The relationship between Chavez and Wadlington ended in 2015, at which point Chavez physically evicted Wadlington and the children from the home they shared. More than a year later, Chavez filed a complaint against the Wadlingtons seeking shared custody of the children, alleging that Serena had intentionally created a permanent parental relationship between Chavez and the children.

Durham County District Court Judge Fred Battaglia granted a motion to dismiss the complaint, finding that Chavez lacked standing to bring the case. On Oct. 2 a divided Court of Appeals panel affirmed that ruling.

In North Carolina, any parent, relative or other person claiming the right to custody of a child can institute a custody action, but the state’s Supreme Court has put limits on who can sue for custody as an “other person,” as Chavez did, saying that the person needs to have a relationship like that of a parent to a child. No state court has ever set out any bright-line rules for what rises to that level, but all successful actions have “involved significant relationships over extensive periods of time.”

Judge Ann Marie Calabria, writing for the court’s majority, said that while the allegations in Chavez’s complaint demonstrated that she had such a parent-child relationship with the children while her relationship was ongoing, she no longer had such a relationship at the time she filed her complaint, and since that was the relevant time period to consider, she could not show that she had any standing to file her complaint.

“Plaintiff’s relationship with the children ended in July 2015 when she evicted them from the residence. This fact defeats plaintiff’s standing as an ‘other person,’” Calabria wrote. “Regardless of the parties’ prior relationship, ‘a third party who has no relationship with a child does not have standing [to] to seek custody of a child from a natural parent.’”

Calabria went on to add that in order to have standing, Chavez needed to overcome the presumption that their children’s natural parents have the superior right to their custody. Even if she could overcome that presumption based on Serena Wadlington’s decision to share child-rearing responsibilities, she still could not overcome that presumption as to the children’s father.

Judge John Arrowood dissenting from the ruling, arguing that a biological mother “cannot erase the parent-child relationship by removing the children from plaintiff’s life after her separation from plaintiff.” The dissent means that Chavez would have the right to have any appeal heard by the Supreme Court.

Becky Watts of Collins Family Law Group in Monroe represented Chavez. Watts said that the lack of bright-line rules concerning standing inherently makes third-party custody cases challenging, but that her client does intend to pursue the appeal further.

“I agree with the dissent’s analysis, which was pretty much my argument that these biological parents allowed my client to be a third-party parent to these children for about seven years, from the time the kids were about five and seven, and I think it’s fairly heartbreaking that she can be a parent to these children for seven years, and then just be told, no, you can’t have anything to do with them anymore,” Watts said.

Watts said that she did not think that the fact that Chavez and Wadlington were in a same-sex relationship was a factor in the court’s reasoning, and that she thought the result would have been the same if her client had been in an opposite-sex relationship.

The Wadlingtons represented themselves in the case.

The 27-page decision is Chavez v. Wadlington (Lawyers Weekly No. 011-310-18). The full text of the opinion is available online at nclawyersweekly.com.

Follow David Donovan on Twitter @NCLWDonovan

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