Research indicates North Dakota is in the minority of jurisdictions that judicially recognize third-party custody or visitation claims absent legislation. See In re Marriage of Rudsell, 291 Ill.App.3d 626, 225 Ill.Dec. 736, 684 N.E.2d 421, 426 (1997) (" A third party seeking to obtain or retain custody of a child over the superior right of the natural parent must demonstrate good cause or reason to overcome the presumption that a parent has a superior right to custody and further must show that it is in the child's best interests that the third party be awarded the care, custody and control of the minor." ) (emphasis in original); Montgomery County Dept. of Social Servs. v. Sanders, 38 Md.App. 406, 381 A.2d 1154, 1161 (Md.Ct.Spec.App.1977) (" When the dispute is between a biological parent and a third party, it is presumed that the child's best interest is subserved by custody in the parent. That presumption is overcome and such custody will be denied if (a) the parent is unfit to have custody, or (b) if there are such exceptional circumstances as make such custody detrimental to the best interest of the child." ); Tubwon v. Weisberg, 394 N.W.2d 601, 603 (Minn.Ct.App.1986) (" In determining custody of MKT, the court cited Wallin v. Wallin, 290 Minn. 261, 187 N.W.2d 627 (1971), which establishes the standard for awarding custody to third parties over the objection of a biological parent." ); In re Guardianship of Lavone M., 9 Neb.App. 245, 610 N.W.2d 29, 40 (2000) (" A court may not properly deprive a biological or adoptive parent of the custody of the minor child unless it is affirmatively shown that such parent is unfit to perform the duties imposed by the relationship or has forfeited that right; neither can a court deprive a parent of the custody of a child merely because the court reasonably believes that some other person could better provide for the child." ); Bodwell v. Brooks, 141 N.H. 508, 686 A.2d 1179, 1183 (1996) (" Once the superior court has acquired jurisdiction over a custody proceeding between unwed natural parents, it may use its parens patriae power to decide whether the best interests of the child warrants the intervention of a stepfather as an appropriate party in the custody determination." ); K.B. v. J.R., 26 Misc.3d 465, 887 N.Y.S.2d 516, 521 (2009) (" Intervention by the State in the right and responsibility of a natural parent to custody of her or his child is warranted if there is first a judicial finding of surrender, abandonment, unfitness, persistent neglect, unfortunate or involuntary extended disruption of custody, or other equivalent but rare extraordinary circumstance which would drastically affect the welfare of the child." ); McDonald v. Wrigley, 870 P.2d 777, 779 (Okla.1994) (" But courts have long held that statutory language similar to that in § 108 and § 112 is sufficient for a divorce court to award custody of a minor child to a third party when the parents are unfit." ); Jacob v. Shultz-Jacob, 923 A.2d 473, 477 (Pa.Super.Ct.2007) (" Our courts have long held that ‘ [the] rights and liabilities arising out of that relation [in loco parentis] are, as the words imply, exactly the same as between parent and child.’ " ); Middleton v. Johnson, 369 S.C. 585, 633 S.E.2d 162, 167 (S.C.Ct.App.2006) (" The notion of a psychological parent or de facto parent was first recognized
by the South Carolina Supreme Court in Moore v. Moore, 300 S.C. 75, 386 S.E.2d 456 (1989). In Moore, the supreme court found that although a psychological parent-child relationship existed between the child and his unrelated custodians, such a bond was inadequate to support awarding permanent custody to the custodians where the biological parent was fit." ); and Randy A.J. v. Norma I.J., 2002 WI App 307, ¶ 17, 259 Wis.2d 120, 655 N.W.2d 195 (" Wisconsin has recognized the equitable parent doctrine. See J.J. v. R.J., 162 Wis.2d 420, 426-30, 469 N.W.2d 877 (Ct.App.1991). The equitable parent doctrine extends the rights and responsibilities of a natural parent to a nonbiological parent seeking custody or visitation. See id.; see also Atkinson v. Atkinson, 160 Mich.App. 601, 408 N.W.2d 516, 519 (1987). Once a court determines that a party is an equitable parent, there is no distinction between the equitable parent and any other parent; each is endowed with the same rights and responsibilities of parenthood." ).
[¶ 33] At least fifteen states and the District of Columbia have statutes regulating third-party custody or visitation issues. See Alaska Stat. § 25.24.150 (2004); Ariz.Rev.Stat. Ann. § 25-415 (2009); Cal. Fam.Code § 3041 (2007); Colo.Rev.Stat. § 14-10-123.4 (1999); Del.Code Ann. tit. 13, § 8-201 (2009); Ky.Rev.Stat. Ann. § 403.270 (2004); La. Civ.Code Ann. art. 133 (1994); Me.Rev.Stat. Ann. tit. 19-A, § 1653 (2009); Mass. Gen. Laws Ann. ch. 208, § 28 (1998); Miss.Code Ann. § 93-5-24 (2003); Mo. Ann. Stat. § 452.375 (2005); N.C. Gen.Stat. Ann. § 50-13.2 (2009); Or.Rev.Stat. Ann. § 109.119 (2003); S.D. Codified Laws § 25-5-29 (2002); Va.Code Ann. § 20-124.2 (2009); W.Va.Code Ann. § 48-9-103 (2001); D.C.Code § 16-831.06 (2009). The legislation from these jurisdictions runs the spectrum from single sentence statutes to entire chapters. Colo.Rev.Stat. § 14-10-123.4 (1999); D.C.Code § 16-831.06 (2009).
