Grandparents’ Rights and Child Custody in North Carolina: What You Need to Know

Getting child custody as a nonparent in North Carolina can be challenging, especially if the child has a surviving parent whose parental rights are intact (meaning they have not been terminated through adoption, emancipation, or another legal proceeding). Courts recognize the natural bond between a child and their biological parents, so judges will not separate children from their immediate family without powerful arguments and evidence.  

North Carolina courts’ primary goal in custody cases is to protect the well-being of the child or children. When a judge evaluates a custody claim, deciding factors often include:  

• The parents’ living situation  
• The parents’ ability to take care of the child  
• The state of the parents’ relationship with the child  
• The child’s wishes, depending on their age 

Taking a child away from their natural parents is a drastic step, and a judge will most likely only give custody to a third party as a last resort.  

RELATED: 5 Reasons a Judge Will Change a Child Custody Order 

How Are Cases of Grandparents Seeking Child Custody Different Than Custody Cases Between Parents? 

In cases where a child’s parents separate and a custody battle happens, the court starts from the assumption that both parents have equal rights to custody. To achieve sole custody, one parent has to prove that the other is unfit or that contact with that parent is not in the child’s best interest. 

But when a grandparent or any other nonparent attempts to seek custody, it’s an uphill battle from the beginning. The non-parent filing for custody must prove that both parents are unfit or have acted in ways that are inconsistent with their protected status as parents.  

Even if grandparents can prove that the parents are unfit, they then have to prove to the court that they are the best available caregivers in order for a judge to award grandparents custody rights. 

In these cases, the court must reach a decision based on clear and convincing evidence. These decisions require a higher standard of proof than custody cases that involve parents only. 

Before awarding custody to grandparents, the court will want to see evidence of the following criteria:  

1. A substantial relationship with the children. Custody is ultimately meant to benefit the children in the best possible way. Before granting custody rights to a child’s grandparents, a judge will want to be sure that the grandparents already have a longstanding involvement in the child’s life. 
2. The child’s best interest. The court will want to see that the child’s grandparents are able to provide a safe and stable environment, and that they are physically and mentally fit to be guardians. 

Can Grandparents Seek Visitation Rights in North Carolina? 

Just as with custody, North Carolina courts presume that a fit parent will act in the best interest of their child. So, when it comes to grandparent visitation, a surviving parent with intact parental rights has the first say in who has access to their children. 

If a custody challenge is ongoing between the parents, though, a grandparent can seek visitation rights. The court can grant grandparent visitation based on any of the following factors:  

1. The court decides that grandparent visitation is in the child’s best interest  
2. The grandparent can show that a parent’s decision against visitation is against the child’s best interest  
3. Visitation doesn’t get in the way of the parent’s relationships with their child 

These factors were discussed in the 2021 Court of Appeals case of Alexander v Alexander.  

RELATED: 5 Child Custody Myths, Debunked