It is well established in North Carolina law that before a court can award custody of or visitation with a minor child to a nonparent over the objection of a parent, the nonparent must allege and prove that the parent is unfit, has neglected the welfare of the child, or has otherwise acted in a manner inconsistent with his or her constitutionally protected status as parent. Price v. Howard, 346 N.C. 68 (1997). [a discussion of the court’s authority to award visitation pursuant to the grandparent visitation statutes is beyond the scope of this post.] If that allegation is proven, the trial court may proceed to determine custody or visitation by application of the best interest of the child standard. If the nonparent third party cannot show that the parent is unfit or has lost their protected status, all custody and/or visitation claims against a parent must be dismissed.
The court of appeals also has held that not all nonparents have standing to bring a claim for custody or visitation against a parent, even if the nonparent alleges that the parent has waived his or her constitutional right to custody and control. In Ellison v. Ramos, 130 N.C. App. 389 (1998), the first appellate opinion to address the issue of standing in a North Carolina nonparent custody action, the court of appeals held that only people who allege a sufficient relationship with the child have the right to file a claim alleging that a parent has lost protected status. The court of appeals based this decision on the statement by the North Carolina Supreme Court in Petersen v. Rogers, 337 N.C. 397 (1994), that “G.S. 50-13.1 was not intended to confer upon strangers the right to bring custody or visitation actions.” (emphasis added).
According to Ellison, a nonparent must allege the existence of a relationship sufficient to show that he or she is not a stranger to the child because “a relationship based on a simple assertion of interest in a child’s welfare is insufficient to establish standing.” Therefore, “a third party who has no relationship with a child does not have standing under N.C. Gen. Stat § 50-13.1 to seek custody of a child from a natural parent.” Ellison, 130 N.C. App. at 394.
The court in Ellison declined to define what constitutes a sufficient relationship to establish standing, holding instead that such determinations must be made on a case-by-case basis. However, the court found that in the case at issue, the nonparent plaintiff properly alleged standing by claiming that she and the child had a “relationship in the nature of a parent–child relationship.” The relationship in the “nature of a parent–child relationship” was established by the fact that the child had resided with plaintiff for several years and that plaintiff “is the only mother the minor child has known.”
Other decisions from the court of appeals on this issue include Seyboth v. Seyboth, 147 N.C. App. 63 (2001) (a stepparent had a relationship in the nature of a parent–child relationship sufficient to give him standing to seek visitation); Mason v. Dwinnell, 190 N.C. App. 209 (2008) (“There can be no serious dispute that [plaintiff] established that she had standing” where complaint alleged she and defendant had jointly raised the child and had entered into an agreement wherein both agreed to act as parents of the child, that plaintiff had provided emotional and financial support for the child, and that plaintiff’s relationship with the child had been presented to friends, family, and schools as one of parent and child.). Cf. Myers v. Baldwin and Baker, 205 N.C. App. 696 (2010) (couple who were unrelated to the child but had cared for the child for two months before filing action for custody “clearly” did not have a relationship with the child sufficient to grant them standing to bring custody action against parents); Tilley v. Diamond (unpublished), 184 N.C. App. 758 (2007) (neighbors of grandfather who filed custody action immediately after being given physical custody of young child by grandfather who was unable to care for child did not have a relationship with child sufficient to grant them standing); and Bohannan v. McManaway, 208 N.C. App. 572 (2011) (nonparents’ allegation that child had lived with them for six months and that they had “bonded with” the child was insufficient to show standing).
In Myers v. Baldwin and Baker and in Tilley v. Diamond, the court of appeals held that custody orders granting custody to persons who did not have standing when the action was filed are void ab initio. In Bohannan, the court of appeals reversed the trial court order granting custody to nonparents even though defendant did not raise the issue of standing on appeal, holding that the appellate court has the obligation to raise issues of subject matter jurisdiction on its own motion.
The court of appeals also has held that the standing of a nonparent is determined based on the relationship between the child and the nonparent at the time the custody action is filed. In Chávez v. Wadlington, 261 N.C. App. 541 (2018), the court held that even though plaintiff had a “parent-like” relationship with the child while plaintiff lived with the child’s mother, plaintiff did not have standing because that relationship ended when she and mother separated approximately 18 months before plaintiff filed for custody.
What about grandparents? Do relatives always have standing?
The answer seems to be yes.
The court in Ellison did not state specifically that any person biologically related to a child will have standing. However, in the case of Yurek v. Baker, 198 NC App 67 (2009), the court of appeals held that a sister and brother-in-law of the child’s father had standing under G.S 50-13.1 without discussing whether those people actually had a personal relationship with the child whose custody was at issue. Rather, the court held that the unambiguous language of G.S. 50-13.1(a) stating that “[a]ny parent, relative, or other person . . . may institute an action or proceeding for the custody of such child” granted standing to these nonparent third parties. (emphasis in original). The court also set out the definition of “relative” from Black’s Law Dictionary 1315 (7th ed. 2004) as a “person connected with another by blood or affinity; a person who is kin with another”.
The court adopted the same analysis when it held in Rodriguez v. Rodriguez, 211 N.C. App. 267 (2011), that the paternal grandparents’ complaint for custody was sufficient to establish their standing to seek custody against a parent because they alleged they were biologically related to the child and alleged that the parent was unfit or had engaged in conduct inconsistent with their protected status. The court rejected the argument of the parent that the grandparents lacked standing because they failed to show they had a significant relationship with the children.
In subsequent opinions, the court of appeals has repeated that a grandparent establishes standing to bring an action for custody of a grandchild by alleging their biological relationship to the child and by alleging that the parent is unfit or had engaged in conduct inconsistent with their protected status, most recently in White v. Boatwright, N.C. App. (July 2, 2025), citing Thomas v. Oxendine, 280 NC App 526 (2021)(citing Rodriguez and Grindstaff v. Byers, 152 N.C. App. 288 (2002).