Stepfather filed a petition for visitation with stepchildren. Biological father’s rights had been terminated and although stepfather had not adopted the children, they had his last name, called him dad, and relied on him solely for financial support. Mother disagreed testifying the children were afraid of their stepfather. The family court ultimately determined that mother was fit and it was not in the children’s best interests for stepfather to have visitation.
Stepfather appealed arguing the family court did not properly apply the best interest standard. The Court of Appeals disagreed, but held that the family court failed to “adequately explain why [mother] did not waive her superior rights to custody.” The Court of Appeals applies Mullins which held that nonparents may seek standing if a parent waives his or her superior right to custody. In the present case, mother may have waived her superior right to custody if stepfather “could prove by clear and convincing evidence that his presence would serve the child’s best interests.” Thus, the Court of Appeals vacates the family court order and remands the matter for further findings on waiver.
Judge Acree concurs writing separately to note that “Mullins remains good law and an open door through which to assault the constitutionally protected right of a person to parent his or her biological or adopted child” and urges the Supreme Court to revisit the issue.
Judge Thompson dissents arguing the family court decision should be upheld because there was no “clear and convincing evidence of waiver.” He argues the majority improperly applied a best interest standard.
Digested by Elizabeth M. Howell
