— blog post by Wofford Burt, PLLC Partner Laura Burt
Simply failing to protect your child from a stepparent’s abusive behavior and inappropriate discipline is conduct inconsistent with parental rights and can result in the loss of custody. This was the result of a recent ruling by our NC Court of Appeals.
Under NC law, a custody case between two parents is determined based on the “best interest” of the child. Biological parents have a constitutionally protected right to care for their children and, unless the parent is determined to be unfit or has engaged in conduct inconsistent with his or her parental rights, the parent wins versus any non-parent in a custody case. Against a biological parent, grandparents generally have limited rights in North Carolina. But, when a parent fails to protect a child from a stepparent’s abuse and inappropriate discipline, the door is now open to a best interest determination for custody between a parent and a grandparent.
In the case at hand, the child (called “Josie” in the case for privacy) had spent considerable time with her paternal grandparents; Josie and her Mom and Dad had lived with Dad’s parents (Josie’s paternal grandparents) when Mom was still with Josie’s Dad. Josie’s parents, however, split up and Josie’s Mom later married another guy (“Chip”) and had two children with him. Chip was emotionally abusive to Josie (yelling at her, calling her names and grabbing her and Chip engaged in inappropriate discipline of Josie including not allowing her to see her paternal grandparents when he was angry at her and requiring her, as a punishment, to stay in an unairconditioned and unvented room. Josie became depressed and suicidal. After a hospital stay, Josie’s paternal grandparents filed a custody action against Josie’s Mom and Josie’s Dad. Josie’s dad appears to not have requested custody. Josie’s grandparents requested custody but did not allege that Mom was unfit or that Mom, herself, had acted in a manner inconsistent with her parental rights but that Josie’s Mom failed to protect Josie from Chip’s abuse and inappropriate discipline.
Now, prior to this case, it was generally understood that the parent must be unfit or the parent had engaged in the conduct to “inconsistent with her parental rights”. Josie’s mom contended that because she was the parent, was fit and had not herself engaged in any conduct that should result in her losing her parental rights, she should win in any custody proceeding against grandparents. Further, Josie’s mom contended that the paternal grandparents had no standing to bring the action. The Trial Court disagreed and determined that Mom’s failure to protect Josie from Chip was, itself, conduct inconsistent with her parental rights and, thereafter, applied the best interest test for custody. Once the “best interest” test was applied, Josie’s paternal grandparents won their custody action and obtained custody of Josie. Mom appealed. The NC Court of Appeals confirmed the Trial Court’s Decision.