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Can a Grandparent Get Custody of a Grandchild?

What You Need to Know About Grandparent Custody

Grandparents Gaining Custody
  • North Carolina courts try to keep children with their parents whenever possible. 
  • However, grandparents may gain custody if the parents aren’t willing or able to care for the child. 
  • Potential guardians should hire an experienced, empathetic family law attorney for guidance through the custody process. 

When a child needs a safe and nurturing place to live, deciding where that place is can be a challenging, emotional process. If the parent or parents aren’t the best people to care for the child, another person might step up and offer to take the child. Usually, this person is a grandparent, but they aren’t the only ones who can seek custody. An applicant could also be extended family members like an aunt, uncle, an older sibling, or another person who has a substantial relationship with the child. 

However, the process of gaining grandparent custody is different than for a parent, and it’s often more complicated and challenging. Keep reading to learn more. 

Grandparents Can Obtain Custody, but They Must Take Extra Steps

Grandparents Gaining Custody

The U.S. Supreme Court has determined that the child’s parents have a constitutionally protected right to the control of their children. North Carolina courts follow the Supreme Court’s broad direction, so judges try to keep parents and children together. However, there are three possible situations where a nonparent, third-party guardian (like a grandparent or stepparent) can be awarded custody because the parents have lost their protected status. Those situations are: 

  • The biological parents have taken actions which are inconsistent with their protected status of a parent (for example, leaving the child with a third party for an extended period of time) 
  • The biological parents can’t care for the child due to things like mental illness 
  • A court finds the biological parents unfit to have custody 

Getting child custody as a nonparent can be extremely challenging. This notion is especially true if a biological parent is a viable option and the parents’ rights are intact. Courts anticipate the child having the strongest bond with their biological parents. That means that judges will not separate children from their immediate family unless there are very good reasons to do so. 

If you or someone you love wants custody of a child in North Carolina, you must prove in court that the biological parent is incapable of caring for the child or that the child’s parents have acted inconsistently with their protected status as a parent. In either situation, you’ll need an experienced family law attorney to help you build your case and fight for custody. 

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What Will the Court Consider When Evaluating My Custody Claim?

Grandparents Gaining Custody

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, the deciding factors 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 Cases Between Parents?

In a custody case between the child’s parents only, the court decides strictly on the child’s best interests. But when a grandparent or any other nonparent attempts to seek custody, that person must first prove that the parents have acted inconsistently with their protected status as parents or that the parents are unfit. In these cases, the court must reach a decision based on “clear and convincing evidence.” It’s a higher standard of proof than the normal standard in custody cases that involve parents only. 

The result is that grandparents and other nonparents often face an uphill custody battle. Because of the challenges involved, you should work with an experienced and dedicated family law attorney if you’re a grandparent and want to petition for custody. 

What Does This Mean for Grandparents Seeking Visitation Rights?

North Carolina courts presume that a fit parent acts in the best interest of the child. When it comes to grandparent visitation, like custody, the parent has the first say in who has access to children. This presumption remains unless they’ve waived their parental rights, as in the situations above. If the custody challenge is ongoing, the court can give grandparent visitation rights if three standards are met: 

  • The court decides that visitation is in the child’s best interest 
  • The grandparent has to show that the parent’s decision against visitation is against the child’ 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, please call 1-888-376-2889 or complete our quick online contact form. 

References

Alexander v. Alexander, 2021-NCCOA-61 

Howell, C. (2011, January). Third Party Custody and Visitation Actions: 2010 Update to the State of the Law in North Carolina. UNC School of Government Family Law Bulletin. https://www.sog.unc.edu/sites/www.sog.unc.edu/files/reports/flb25.pdf 

N.C. Gen. Stat. § 50-13.1 

N.C. Gen. Stat. § 50-13.2 

N.C. Gen. Stat. § 50-13.5 

N.C. Gen. Stat. § 50-13.1 

Troxel v. Granville, 530 U.S. 57 (2000) 

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

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