North Carolina Custody and Visitation Law
North Carolina courts have used a parent’s sexual orientation to deny, restrict or modify custody and visitation. There are no published cases dealing with transgender parents or same-sex co-parents.
Custody and Visitation for Gay, Lesbian and Bisexual Parents
North Carolina courts have used a parent’s sexual orientation to deny, restrict or modify custody and visitation.
North Carolina law states: “An order for custody of a minor child entered pursuant to this section shall award the custody of such child to such person, agency, organization or institution as will best promote the interest and welfare of the child. In making the determination, the court shall consider all relevant factors including acts of domestic violence between the parties, the safety of the child and the safety of either party from domestic violence by the other party and shall make findings accordingly. An order for custody must include findings of fact which support the determination of what is in the best interest of the child. Between the mother and father, whether natural or adoptive, no presumption shall apply as to who will better promote the interest and welfare of the child. Joint custody to the parents shall be considered upon the request of either parent.
An order for custody of a minor child may grant joint custody to the parents, exclusive custody to one person, agency, organization or institution, or grant custody to two or more persons, agencies, organizations or institutions. Any order for custody shall include such terms, including visitation, as will best promote the interest and welfare of the child. If the court finds that domestic violence has occurred, the court shall enter such orders that best protect the children and party who were the victims of domestic violence. … An order of a court of this state for custody of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances by either party or anyone interested.”
In a 1998 case, the parents were given joint legal custody and the father physical custody. After the father’s same-sex partner moved into the home, the mother petitioned for a change in custody. The trial court found that there was a substantial change of circumstances affecting the welfare of the two children to warrant a change in custody, specifically due to the father’s homosexuality. The court found the mother was the fit and proper person to have physical custody. The Appeals Court reversed this decision and it was appealed to the state Supreme Court. The Supreme Court ruled that the appeals court used the incorrect standard of whether the change of circumstances had an adverse effect on the child, rather the standard of whether there has been a substantial change of circumstances affecting the welfare of the child. The Supreme Court went on to find that the father’s conduct was not fit and proper and would expose his sons to unfit and improper influences and that his involvement with his partner was detrimental to the best interest and welfare of the children. The Supreme Court reinstated the trial court decision that changed custody to the mother and placed the restriction on the father of not having his children in the same home as his same-sex partner while the father was exercising his visitation rights. The Supreme Court noted, however, “Nor does this court hold that the mere homosexual status of a parent is sufficient, taken alone, to support denying such parent custody of his or her child or children.”
In a 1979 case, custody of the children was placed with the mother and the father was able to have unsupervised overnight visitation as long as the son was not in the presence of the father’s boyfriends. The mother challenged the order because the father was gay. The Appeals Court affirmed the trial court order stating that there was no evidence that the child had ever been physically abused by the father or that the father demonstrated affection for other men in the presence of the child.
In another 1979 case, Newsome v. Newsome, a trail court found that there had been a substantial change in circumstances since the divorce decree giving the mother, now in a same-sex relationship, custody of the children to warrant a transfer of custody to the father. The Court of Appeals affirmed this decision, agreeing that there was "an abundance of evidence to support the critical finding that the environment in which the [mother] has placed the child is not in the child's best interest." Additionally, the restriction of not having the children in the presence of the mother’s same-sex partner was placed on the mother’s visitation rights.
Custody and Visitation for Transgender Parents
There are no published cases dealing with transgender parents.
Custody and Visitation for Same-Sex Co-Parents
There are no published cases dealing with same-sex co-parents.
Citations: N.C. GEN. STAT. 50-13.2; N.C. GEN. STAT. § 50-13.7; Pulliam v. Smith, 501 S.E.2d 898 (N.C. 1998); Woodruff v. Woodruff, 260 S.E.2d 775 (N.C. Ct. App. 1979); Newsome v. Newsome, 256 S.E.2d 849 (N.C. Ct. App. 1979).
The legal information provided on this page is provided as a courtesy to the public. It is not designed to serve as legal advice. HRC does not warrant that this information is current or comprehensive.
Last Updated: 10/13/2005