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3 Reasons Grandparents Can File for Custody of a Grandchild in North Carolina

A grandparent sitting on the floor with a grandchild while smiling and looking at papers

Every child deserves a relationship with loving, nurturing parents. But what happens in terms of child custody when a tragedy occurs, or when parents aren’t willing or able to live up to their responsibilities?

When one or both parents cannot provide adequate care for their child or are deceased, another person might step up and offer to take custody. Many times, this person is the child’s grandparent, although custody could also extend to other family members (such as aunts, uncles, an older sibling) or another person with a meaningful relationship with the child.

Deciding where a child should live and who should have day-to-day and legal custody can be a challenging, emotional process. While a grandparent might seem like the natural choice, the process for a grandparent (or any other non-parent third-party) to obtain custody is very different—and often more complicated and challenging—than it would be for a natural parent.

In North Carolina, there are three possible situations where parents can lose their protected status and a nonparent, third-party person (like a grandparent or stepparent) can get legal and physical custody.

Those three situations are: 

  1. The biological parents have taken actions which are inconsistent with their protected status of a parent (for example, voluntarily leaving the child to live with a non-parent for a long period of time).
  2. The biological parents can’t care for the child due to a serious issue such as mental illness. This is referred to as neglect.
  3. A court finds the biological parents unfit to have custody.

What You Need to Know About Grandparent Custody in North Carolina: The Basics

A grandparent and a grandchild spending time together

The U.S. Supreme Court has determined that a child’s parents have a constitutionally protected paramount right to the care and control of their children. North Carolina courts must follow the Supreme Court’s broad direction, so judges can only grant custody to third-parties in limited circumstances.

In North Carolina, grandparents’ rights are usually very limited if the child has at least one surviving parent. While grandparents might not always agree with the parenting choices made for their grandchildren, they usually have no legal say in the matter.

Even filing for visitation rights is restricted to situations where the grandchild’s parents are engaged in an active lawsuit against one another (such as separation, divorce, or filing to change a custody order). This was made harder by a recent North Carolina Court of Appeals ruling that put additional requirements on what grandparents must show before they can receive visitation. The only time grandparents may seek custody is if the parents have acted inconsistently with their constitutionally protected rights, or they aren’t willing or able to care for the child.

But even when parents can’t provide adequate care and someone else must step in, the process of determining custody is not automatic or simple, and grandparents don’t necessarily get priority over other surviving relatives.

According to North Carolina law, any “parent, relative, or other person, agency, organization or institution claiming the right to custody of a minor child” may file for custody. (N.C. Gen. Stat. §50-13.1(a)).

So, an extended family member like an aunt, uncle, older sibling, or another person could seek custody. North Carolina caselaw requires that any such persons much show they have a substantial relationship with the child. Once the substantial relationship is established, the person must still show how the parents have lost their protected status. This is required to be shown by clear and convincing evidence, which is a higher legal standard than the normal civil standard of “preponderance of the evidence.”

If all of these requirements are met, it will be up to the court to determine which potential caregiver would be in the best interest of the child.

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Grandparents Can Obtain Custody, but They Must Take Extra Steps

A closeup of a hand signing paperwork

Getting child custody as a nonparent in North Carolina can be very challenging, especially if the child has a surviving parent whose parental rights are intact (meaning not 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.

Common Scenarios in Which Grandparent Custody May Be Awarded

Every family situation is unique, so every child custody case will play out differently. There are many potential reasons why a court might find a custodial parent unfit and allow a grandparent to pursue custody rights. Examples of such reasons include:

  • Child abuse. This would include actively causing serious physical or emotional damage to a child, including cruel or excessive discipline.
  • Neglect. This can include failure to provide proper care, supervision, support, or discipline.
  • Alcohol or drug addiction.
  • Criminal activity or imprisonment.
  • Child abandonment. Under North Carolina law, parental rights can potentially be terminated if a parent abandons their child for at least six consecutive months, during which time the parent has no contact with the child.
  • The child is already living with the grandparent. Living with a grandparent isn’t enough cause on its own for the court to give grandparents custody. However, when parents are declared unfit and courts look to other family members for custody, judges do tend to consider the stability of the child’s living situation. So, if the child is already living with their grandparents, the court might prefer the grandparents over other family members who separately file for custody.
  • Voluntary adoption. If the custodial parent or parents recognize that they are unfit or unable to care for the child and all parties consent to the process, the grandparents can file a petition to adopt.
  • Death of the parents. If both parents pass away (or one dies and the other parent’s whereabouts are unknown) without designating a legal guardian, courts will typically look to close family members when deciding who should gain legal and physical custody of the child.

Temporary grandparent custody might also be granted if Child Protective Services (CPS) determines that the grandchild should not remain at home while a legal process or CPS investigation is ongoing. If all surviving parents are deemed unfit, grandparents can then file for sole custody.

What Will the Court Consider When Evaluating My Custody Claim?

A happy child playing on a playground

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

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

In cases where a child’s parents are separated and a custody battle happens, the court starts from the assumption that both parents have equal rights to custody. 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 first prove that the parents are unfit or have acted in ways that are inconsistent with their protected status as parents.

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

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, a grandparent can seek visitation rights. The court can grant grandparent visitation based on any of the following three factors: 

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

RELATED: 5 Child Custody Myths, Debunked 

Contact Myers Law Firm if You Need Help With Child Custody in Charlotte, North Carolina

At Myers Law Firm, we know how important family is. That’s why we fight to protect families just like yours.

If you’re fighting for custody of a child and you need help, contact us today. We can meet with you to answer your questions, help you understand your options, and create a plan for what comes next. 

To schedule your initial consultation today, call 1-888-376-2889 or use our quick online contact form

The content provided here is for informational purposes only and should not be construed as legal advice on any subject.

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