Parental Rights in an LGBTQ+ Relationship
In North Carolina, legally recognized parents have certain parental rights as a matter of law.
A parent may be defined as a parent listed on a birth certificate, a parent acknowledged within a Court Order, or an affidavit of parentage.
Married spouses are legally presumed to be the parents of a child born during marriage.
This presumption likely extends to same-sex couples following the US Supreme Court's decision in Pavan v. Smith.
Who is Deemed a “Parent?”
"Given recent changes to the NC family laws, predicated in part on nationwide and NC family law cases, we anticipate further development in protocols and practice relative to separation, divorce, child custody, and support."
- Bill Powers, Divorce Lawyer Charlotte NC
While parentage is presumed during a marriage, it is a rebuttable presumption and may be challenged in certain circumstances in court.
"We think it’s a good idea, given the evolving nature of the law vis-à-vis same-sex marriages and LGBTQ+ interests, to make a plan. Don’t assume."
- Bill Powers, Custody Lawyers Charlotte NC
To clear up potential areas of conflict and better-protect parental rights and interests for both spouses, the National Center for Lesbian Rights recommends that the nonbiological parent either adopt the child or receive a parentage judgment, as may be authorized/required under the law.
** The NC Family Law statutes and legal opinions presently include language that likely will be updated and/or amended, consistent with United States Supreme Court ruling in Pavan v. Smith. For example, Due Process and Equal Protection issues may require litigation regarding claims Alienation of Affections / Criminal Conversation (heart balm torts) matters, Chapter 50B Domestic Violence Restraining Orders, and specific limiting language in the respective statutes or standing caselaw. Put simply, some existing laws have internal inconsistencies, outdated, and/or outmoded language recognizing (or limiting) legal rights of opposite sex partners.
LGBTQ+ couples may consider executing (signing) co-parenting agreement in the event that the relationship comes to an end.
A co-parenting agreement is essentially a contract showing the intent between the biological parent and nonbiological parent to raise the child together, sharing the child's obligations, needs, and legal responsibilities and duties as a parent.
A Parenting Agreement may consider Parental Rights for things such as:
- Joint Custody
- Sole Custody
- Primary Custody
- Major Holidays
- Summer Vacation
- Weekly / Monthly Visitation Schedules
- Transport / Transfer
- Child Support
- Calculation of Child Support
- Non-Covered Expenses
- Insurance Premiums / Coverage Costs
- Primary Education, Middle, and High School
- Post K-12 Studies, College, Graduate School
- Disposition of Education Accounts, 529 Programs, College Accounts
- Medical Treatment
- Insurance Coverage
- Major Medical Insurance
- Life Insurance
- Disability Interests
- Rights of Survivorship
- Religion and Religious Practices
- Sports / Social Events
- Out-of-Town / State Moves and Life Changes
In the event that a nonbiological parent's rights are challenged, the Court (the Judge) will look for intent between the biological and nonbiological parents to raise the child jointly.
Legal issues involving separation, divorce, child custody, and child support are handled by a District Court Judge in North Carolina. In Charlotte, legal disputes are subject to local rules of Family Court.
That is different from criminal cases involving assault, criminal domestic violence charges, and even civil litigation involving legal claims for Alienation of Affect and/or Criminal Conversation in NC.
It frankly can be a bit complicated navigating the legal system.
While related, by fact-pattern, there may be multiple legal issues and/or legal proceedings. That’s one reason we think it’s a good idea retain an experienced family law attorney in Charlotte.
One would be remiss in failing to note the “Polar Star” rule in North Carolina regarding child custody issues: Best Interests of Children.
Above all, any legal consideration of custody of children involves an analysis of what is in the Best Interests of the minor child.
Both Child Support and Best Interests consideration are subject to review by the Court.
Even if drafted in a Parenting Agreement, the Court may review issues involving support and custody as it pertains to what is best for the child or children post-separation and divorce.
While it does not substitute an adoption or a parentage judgment, a co-parenting agreement is one of the best ways to show intent to raise the child with both individuals acting as parents as noted in the NC Court of Appeals case Mason v. Dwinnell.Charlotte Divorce Lawyers – Child Custody and Support Attorneys
LGBTQ+ couples should speak to an experienced family law attorney to discuss the best options available to fit their family, including drafting a co-parenting agreement.
A non-biological parent may be entitled to a Court Order that grants them some parental rights such as custody and visitation.
In North Carolina, a nonbiological parent may gain parental rights by proving to the court:
- The biological parent is generally unfit
- The child is neglected or
- The biological parent has acted inconsistently with their constitutional rights as a legal parent
Acting inconsistently with a parent's constitutional rights has been interpreted to include when a legal parent has a relationship with a non-legal parent and allows a parent-child relationship to develop between their child and a non-legal parent.
As noted in Mason, the legal parent's intent to include the non-legal parent to act as another parent to the child is a significant factor in determining whether the legal parent acted inconsistently with their constitutional rights.
In this situation, the court often considers several factors to determine such a relationship developed with the child, including:
- Best Interests of the Child
- Being present for the birth of the child
- The non-legal parent being on the birth certificate
- Providing basic needs, food, housing, clothing, emotional support, and other financial interests for the benefit of child
- Cooperation between the legal and non-legal parent to provide care for the child
- The non-legal parent and non-legal parent holding themselves out to others as the legal parents of the child
- Drafting a co-parenting agreement showing intent to have both parties act as parents
If a court finds enough factors to prove the relationship exists, the non-legal parent may receive parental rights.Legal Rights as a Parent in NC
Transgender and nonbinary individuals may find it more challenging to secure their parental rights.
Transitioning or identifying a different gender identity is already stressful because of how society views those who do not fit within expected gender norms.
Adding the stress of separation, divorce, and a potential child custody dispute can be overwhelming.
Some states have made determinations concerning transgender and nonbinary parents and child custody.
In Nevada and Kentucky, trans parents have had all parental rights removed because they were transitioning, and the court determined that the transition would be detrimental to the child.
However, a Colorado court determined that no harm would come to the child because a parent was transitioning and maintained that parents' rights.
North Carolina has yet to make such a ruling regarding transitioning or nonbinary parents and parental rights. Ultimately, a North Carolina judge will determine what is in the child's best interest when determining custody and visitation rights.
Nonbiological parents seeking parental rights through a court order should keep details regarding interactions with the child and biological parent to show a relationship formed with the child.
Consider hiring a passionate and knowledgeable family law attorney to advocate for your parental rights, regardless of your sexual orientation or gender identity.
If you have any questions or concerns about your parental rights, please give Powers Law Firm PA a call at 704-342-4357.
Email Bill Powers now Bill@CarolinaAttorneys.com