Grandparent Custody… When your child is unable to care for their child.

Ashley BenningtonIn North Carolina, biological parents maintain superior rights to custody of their children which is a fundamental right protected by the Fourteenth Amendment to the US Constitution.  However, there may be circumstances that exists in which a parent loses those superior rights and a grandparent is able to intervene and request custody of their grandchild.  Before a grandparent can be considered as a custodian for their grandchild, the grandparent must be granted standing by the Court to pursue custody.  In order to be granted standing to pursue custody, the grandparent must show by clear, cogent and convincing evidence that the parents of the child are either unfit or have acted in a manner that is inconsistent with their constitutionally protected status as a parent.  This determination must be made about both parents of the minor child before a grandparent can be considered for custody.

In determining whether the parents of your grandchild are unfit, the Court will consider things such as whether the parents abandoned their child; whether there have been allegations or a substantiation of physical, mental or emotional abuse; or whether the child has been neglected by his or her parents.  The most straightforward way of making this determination is when the Department of Social Services is involved and has substantiated abuse, neglect or dependency against one or both of the parents and taken custody of the child.  When the Department of Social Services is not involved, the grandparent will need to present clear evidence of the unfitness of the parent.

If the parents of your grandchild are not unfit, but you still believe that your grandchild is not safe, you may allege that they have acted in a manner inconsistent with their constitutionally protected status as parents in an effort to be allowed to seek custody of your grandchild.  There is no bright line rule used to determine whether a parent has acted in a manner inconsistent with their constitutionally protected status.  Each case determination requires a very fact specific inquiry by the Court of the circumstances, but ultimately the Court is assessing whether the parent has voluntarily taken action that would forfeit their parental rights.  For instance, voluntarily leaving their child with someone for an indeterminate period of time with no intention or plan for returning may be inconsistent with a parent’s constitutionally protected status.  Failing to assume the roles and responsibilities of a parent, including providing physical and financial care, or allowing a third party to assume the roles and responsibilities of a parent may be inconsistent with a parent’s constitutionally protected status.  A parent engaging in excessive alcohol use over a period of time has been determined to not be inconsistent with their constitutionally protected status.  As indicated, each case is different and requires a fully assessment to determine if the appropriate legal standard can be met.

If you are a grandparent concerned about your grandchildren and the ability of their parents to provide care for them, contact one of our Board Certified Family Law Specialists at Black, Slaughter & Black, P.A. today.