Mother contests custody suit by non-biological father…
A sample of cases handled by Legal Aid of North Carolina
Note: This is an actual case submitted by an attorney from the Legal Aid of North Carolina office in Greensboro, NC.
A Randolph County woman had recently separated from her abusive husband
with whom she had been married for nearly six years. The husband decided
to file suit for custody of her six-year-old boy. The mother contacted
Legal Aid for legal advice.
The mother claimed that the child had not been conceived or born during
the marriage to her ex-husband. She also claimed that she and her older
son (now fourteen years old) had been victims of her husband’s bizarre,
controlling behavior and domestic violence during the marriage and that
her husband had threatened that she would not live if she left. She
said that her husband has numerous guns, is a marksman, and is a member
of a hate group.
Following the separation, the husband had signed a memorandum of judgment,
which stated that if a negative paternity test was obtained, he would
give up all claims to custody and visitation for the new baby. The paternity
test had come up negative; that is, it had indicated that the husband
was not the biological father of the baby.
The husband had later filed a "60(b)" motion to set aside the judgment
and had moved for custody of the six-year-old child. The mother had
then contacted Legal Aid for legal advice.
The Legal Aid attorney reviewed the case and filed a motion to
dismiss the husband’s "60(b)" motion and the custody motion, based on
"lack of standing". At the hearing, the Court ruled in favor of the
husband’s motion to set aside the memorandum of judgment, and set a
date for the custody trial. However, the Court denied interim visitation
rights to the husband, since the mother had an "intact family" under
the law and that the Court had ruled no standing for visitation.
At the trial, the husband (the plaintiff) sued for custody based on
a "best interests of the child" argument. However, in a third-party
(a third-party is not the natural parent) custody action, the "burden
of proof" (responsibility to prove) test is higher than the "best interests"
test. The Legal Aid attorney argued that the husband had to show
that the mother was an "unfit parent". The law defines "unfit" as abuse
or neglect of a child.
At the end of the three-day trial, the Judge ordered that the husband
(the plaintiff) had not met the "burden of proof" test because he did
not prove that the mother was "unfit". The mother was awarded the sole
care, custody, and control of the minor child, and the husband was denied
visitation rights and ordered to return all of the child’s property
still in his possession.
The husband appealed the decision, but has since abandoned the appeal.
Legal Aid also helped the mother obtain a divorce.
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Legal Aid of North Carolina is a statewide, nonprofit law firm that
provides free legal services in civil matters to low-income people in
order to ensure equal access to justice and to remove legal barriers
to economic opportunity.