Child Custody Determinations North Carolina

In Petersen v. Rogers, 337 N.C. 397, 445 S.E.2d 901 (1994), the Supreme Court of North Carolina first addressed the impact of Stanley v. Illinois, 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972), on custody determinations in North Carolina. The Court noted Stanley's holding, based on the Due Process Clause, that "'it is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.'" 337 N.C. at 400-01, 445 S.E.2d at 903. (quoting Stanley, 405 U.S. at 651, 31 L. Ed. 2d at 559, 92 S. Ct. at 1213). Based on this principle, the Court held "that absent a finding that parents: (i) are unfit or; (ii) have neglected the welfare of their children, the constitutionally-protected paramount right of parents to custody, care, and control of their children must prevail." Id. at 403-04, 445 S.E.2d at 905. Because the trial court in that case had made no finding that the natural parents were unfit or had neglected their child's welfare, the trial court "could not award custody to anyone other than the parents." Id. at 404, 445 S.E.2d at 905.