Amendment's Impact On Child Custody Debated

A proposed amendment to the North Carolina constitution would define marriage between one man and one woman as the only valid or recognized domestic legal union in the state. Opponents of the amendment claim its wording would put certain protections and benefits at risk for all unmarried couples and their children. Among them: child custody and visitation rights.

Isaac-Davy Aronson: North Carolina courts currently determine custody and visitation rights according to the "best interests of the child" standard. UNC family law professor Maxine Eichner says, that's evolved to mean that nonmarital cohabitation isn't held against a parent seeking custody of a child, unless some harm to the child can be shown. And an unmarried partner of a biological or adoptive parent can seek custody and visitation rights on the grounds that he or she is a de facto parent.

Maxine Eichner: I don't think passage of the amendment would absolutely require that courts roll that back, but courts could certainly find that public policy no longer supports that position and could move back to a position finding that indeed there was harm to a child by the simple fact of cohabitation without requiring any showing of harm.

Three law professors at Campbell University released a study last week arguing that such a court finding is even less likely than Eichner suggests. They say the amendment doesn't bar recognition of any "relationship" besides heterosexual marriage - just any, quote, "union." They say the language is clearly intended only to block marriages or "marriage imitations or substitutes." Therefore, they say, the "best interests of the child" standard is highly unlikely to change if voters approve the amendment on May 8th.