The trial court entered an emergency ex parte order awarding custody of the child to plaintiffs and, following a hearing, entered a temporary custody order continuing custody with plaintiffs until the permanent custody trial. In addition, the complaint alleged that the child’s mother acted inconsistent with her protected status as a parent, thereby waiving her constitutional right to custody, by repeatedly and willfully failing to protect the child from danger and harm caused by the actions of mother’s husband, the child’s stepfather. The grandparent complaint alleged that plaintiffs are the child’s paternal grandparents and that they have a close, substantial relationship with the child. Plaintiffs are the paternal grandparents of the minor child whose custody is at issue in this case. In a recent case, the Court of Appeals clarified that the standing determination is made on the court’s review of the complaint alone. To determine whether the complaint should be dismissed for plaintiff’s lack of standing, does the court need to conduct an evidentiary hearing to determine whether the parent has waived their constitutional right to custody or is the standing determination made on a review of the complaint alone? In response, the parent files an answer and a motion to dismiss the complaint pursuant to Rule 12(b), arguing that the nonparent does not have standing to seek custody of the child. The complaint includes allegations regarding the relationship between the nonparent and the child and includes allegations that the parent has waived their constitutional right to exclusive care, custody and control of the child. Consider the situation where a grandparent or other nonparent files a custody action against a parent.
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