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Constitutional Right to Child Custody | Cary Custody and Visitation Attorney


Maginnis Howard no longer practices family law. We currently work personal injury cases, consumer cases relating to credit or harassing phone calls, and wage and hour/employment cases.

Child custody issues between two biological parents are determined by the best interests of the child standard. The court looks at both parents and determines the child custody arrangement based on who can best care for the child. There are many factors the courts use to make this determination so a lawyer with a detailed understanding of the law is very important.

When third parties, such as grandparents or stepparents, are brought into custody disputes, the custody arrangements can become more complicated. In some cases the courts will decide that there is no “standing” for a grandparent or stepparent to contest custody. A United States Supreme Court decision gives a presumption to biological parents that a fit parent’s decision is in the best interests of the child. Special weight must be given to the interest of a legal parent in decisions about a child.

North Carolina gives legal parents a fundamental right to parent a child and cannot be questioned unless the parent has acted inconsistent with that right. North Carolina has a very high standard for grandparents or stepparents to gain child custody or visitation. This can be true even if the grandparent or stepparent has assumed much of the parental responsibilities.

What about child custody or child visitation rights between a “legal parent” and a “biological parent?” In North Carolina an illegitimate child is a child born outside of wedlock that has not been legitimated. A mere biological link is not equivalent to a legal parent relationship. For a father to receive constitutional protection he must “come forward to participate in the rearing of a child.” Only at this point will he be on equal footing with the biological mother. A mere biological link will not be enough.

For unmarried people who live together and same-sex couples, these laws and standards can make custody determinations difficult. In vitro fertilization, artificial insemination, and surrogacy require a nuanced understanding of the law.