Grandparents’ Rights To Child Custody - Part II

When a grandchild’s wellbeing is threatened, it is only natural for a grandparent to want to step in. As a Raleigh Family Attorney, I often get calls about grandparents wanting to obtain custody of their grandchildren because they are concerned about the ability of their own children to care for their grandchildren.

While a grandparent may be able to seek a court order for visitation (see our blog post about grandparent visitation), this does not mean they will be able to get an order for custody of the children. The burden is much higher for custody and you should always seek out an experienced attorney for help!

In order to challenge custody from a parent, a grandparent must first prove they have a substantial relationship with the child that is sufficient to establish the right to sue for custody. In other words, they grandparent must show that they are involved in the child’s life.

Some common examples are financial support, spiritual or emotional support, teaching the child about daily living, attending school functions, or taking the child to medical or dental appointments.

The next step is more difficult. When seeking custody as a non-parent, it’s important to remember is that a child’s parents have a constitutional right to have the custody of their children.

This is not to say that this right cannot be taken away, but a grandparent must first prove, by a clear and convincing standard, that the parents have waived their constitutional rights to have custody of their child by being unfit, neglecting the welfare of the child, or acting inconsistently with their constitutionally protected status as a parent.

When considering whether a parent is acting inconsistent with their constitutionally protected rights, a court may consider the following:

  • Whether the parents have abused drugs or alcohol;
  • Whether the child has been physically or mentally abused;
  • Whether the parents have neglected the child;
  • Whether the child’s parents are mentally able to care for the child;
  • Whether the parents have place the child in danger or have abandoned the child for a period of time;
  • Whether the parents have sought interaction with the children if they have left them in the grandparents’ care; or
  • Any other relevant consideration.

Grandparents should also know that in North Carolina, even if only one of the two parents is acting consistent with their parental rights, custody will remain with that parent. Custody will only be given to a grandparent if both parents are acting inconsistent with their parental rights.

Once you have established the parents have acted inconsistent with their parental rights, you must prove that the parent is not a proper person to have primary care, custody and control of your grandchild, that you are a proper person to have primary care, custody and control of the minor child, and it is in the best interests of the minor child for you to have custody.

There are several factors that can be considered for this step, including the following:

  • The ability of the grandparent to provide for the child financially;
  • Whether the grandparent is capable of meeting the child’s daily needs;
  • The ability of the grandparents to provide a safe and loving home environment;
  • The grandparent’s or parent’s wishes for the child; and
  • The grandparent’s ability to help with school, recreational activities or spiritual learning.

If you are considering filing for custody of your grandchild, you should not go at this alone.  The process is complex and you should have an experienced child custody lawyer. With proper legal representation, Kurtz & Blum, PLLC can help fight for the best interests of your grandchild and guide you through the process, step by step.