Are you a step parent who has an established relationship with a child and now you and your spouse (the biological parent) are divorcing?  Do you have any rights? 

N.C. Gen. Stat. §50-13.1 et. al. allows "“any parent, relative, or other person” to file a lawsuit for custody of a minor child.  In order to have a viable case, the "other person" must have a relationship with the child that is in the nature of a parent-child relationship.   Further, the "other person" must meet the legal burden to proceed in the lawsuit.  

North Carolina case law has held that biological parents have exclusive custody of their children and it is a privilege of the parent to decide with whom the child associates.  The courts prefer the biological parent.

If the court finds that the parent has waived their constitutionally protected status, the presumption towards the legal parent can be rebutted.

Evidence to rebut the presumption must show that the parent is unfit or has otherwise "acted inconsistently" with his or her constitutionally protected rights.  If the step parent can prove that the parent is unfit or acted inconsistently, the judge can then make a decision that it is in the best interests of the minor child to be in the custody of the "other person".

Clearly, unfit means that the parent may be a drug addict or without proper housing or incarcerated, etc.   But, what does "act inconsistently" mean?  One common behavior that is typically deemed to be sufficient is when a parent voluntarily relinquishes physical custody of child to a third party for a period of time without making it clear that the arrangement was temporary or when a legal parent encourages an relationship between the other person and child.   If the relationship is like that of a parent and child, the court may find that the legal parent waived their constitutionally protected status.  

Essentially, the case law states that judges should examine whether the legal parent created a family unit between the other person and the child and gave that other parent a significant level of parental decision making responsibility.  

The trial judge should examine the intent and conduct of the legal parent (not the other person) “during the formation and pendency of the parent-child relationship.”

Specifically, for step parents, the judge should examine the evidence during the marriage, rather than after the separation, with regard to the stepparent's role in the child's life.