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How to Handle Non-Traditional Child Custody and Visitation Situations

Custody and visitation issues for nonmarried couples and nontraditional families are common in today’s modern households. In situations where nonmarried or nontraditional parents dispute custody, it is common for the mother to be given custody.

If the father is the legal parent, a good person, and able to care for the child, the rights of the father will likely not be changed based on whether the mother was married to the father. Custody of children is determined by the character, actions, and abilities of the parents, not on whether they are married. The focus is appropriately on the child, not the marital status of the parents.

The preliminary threshold for any party seeking visitation, whether it be unmarried parents, grandparents, surrogates, or others, is to establish that they have a “parentlike relationship” with the child. Once that initial threshold is met, the party seeking visitation has the burden of proving that the parent’s denial of visitation to the petitioner will cause actual and significant harm. Courts have acknowledged that actual harm could be found in situations where the petitioning party had a long-term significant “parentlike relationship” with the child.

Proof of actual, significant harm constitutes a higher standard than the “best interests of the child” test. That burden of proof is instead held to a clear and convincing heightened evidentiary standard.

Some states’ visitation statutes are broad enough to encompass awarding visitation rights to any person, such as grandparents, blood relatives, former boyfriends and girlfriends, former foster parents, biological parents after adoption, and gay partners of a child’s parent. The key to determinations that lean toward such a broad scope is the person’s development of a significant parenting relationship with the child. The reasoning of such courts is that not all parentlike relationships are necessarily between blood relations.

More liberal courts, such as those in Connecticut, have examined dissolution in traditional and nontraditional settings to ascertain that when a nontraditional relationship dissolves, the child is just as likely to be subject to turmoil as with a traditional family.

On the other hand, North Carolina courts have assumed a rigid approach to third-party custody and visitation. In such conservative venues, there is a paramount right of biological parents to possess custody of their children. Absent a finding that the biological parents are unfit or have neglected the welfare of their children, the constitutionally protected and paramount right of parents to enjoy custody, care, and control of their children prevails over the rights of all third parties.

Given the marked differences in common law between jurisdictions on custody determinations, it is prudent to consult with counsel when petitioning for custody and visitation, especially in nontraditional situations.