North Carolina Law Review

University of North Carolina School of Law

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Chapel Hill, NC 27514

Parenthood by Estoppel? Assessing Boseman v. Jarrell and North Carolina's Child Custody Standard

March 29, 2012

90 N.C. L. Rev. Addendum 180 (2012)


The Supreme Court of North Carolina's recent decision in Boseman v. Jarrell has the potential to invoke each of the chief taboos of polite public discourse: sex, politics, and religion. However, it also centers on some of the most foundational elements of societal construction, the family and the well-being of children. The Supreme Court of the United States has explicitly and repeatedly acknowledged the significance of parental rights as "perhaps the oldest of the fundamental liberty interests recognized by this Court." However, the core justification for parental rights also proves to be its most significant limitation. Since the state's recognition of parental rights is based on an assumption that parents will act in the best interests of their children, the state may act pursuant to its parens patriae interest and intervene contrary to the wishes of a legal parent if that parent is found to be unfit or to have acted in a way that significantly deviated from the best interests of her child.


While North Carolina's legal standards in the area of parental rights are generally consistent with the standards set forth by federal constitutional jurisprudence, the Supreme Court of North Carolina's most recent venture into child custody analysis demonstrates that the state's custody standard has gradually deviated in a subtle, yet significant way from federal constitutional requirements. In Boseman, the court effectively terminated the parental rights of a fit, legal parent by granting joint custody to a non-legal parent who previously had no legal rights with respect to the child. Considering the strong deference that federal jurisprudence affords to the parental rights of fit, legal parents, North Carolina's acknowledgement of legal rights for "social parents" appears to be at odds with constitutionally protected parental liberty interests. 


This Recent Development demonstrates that the means by which the Boseman court effectively terminated the parental rights of a fit, legal parent is at odds with clear, long-standing constitutional standards and violates, even contradicts, compelling state policy interests.  



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