Grandparent Rights and Third-Party Custody Rights

Carolyn J. Woodruff, JD, CPA, CVA
North Carolina Family Law Specialist

Part One: This article on North Carolina law discusses the following topics: grandparents custody; temporary custody to grandparents; grandparents custody over Father and/or Mother; grandparent custody with a parent; grandparent emergency custody; grandparent rights; how to get custody of grandchild (granddaughter or grandson or both); how to obtain custody of grandchildren; grandparent visitation as distinguished from grandparent custody; and how to find a lawyer for grandparents.

Grandparent child custody is a complex area under North Carolina law. It can be a grandmother seeking custody or a grandfather or both grandparents seeking custody. It matters not whether the child is a grandson or granddaughter. In the Triad, a court in Greensboro, North Carolina might interpret and apply the law differently than a court in Asheboro, even though it is the same law. The facts are critical as the natural parent has the rights, but these rights can give way to the best interests of the children. So, yes, grandparents can obtain custodial rights in North Carolina if the facts are right. For example, unfitness of a drug-addicted parent can create a custody opportunity for a grandparent.

Part Two: This section deals with custody situations when someone other than a parent or grandparent seeks child custody rights. An example of a third party that might have standing for child custody would be a stepparent.

Frequently Asked Questions:

  1. Can I give a grandparent temporary custody? Yes, in the best interests of your child, both biological parents can grant temporary custody to a grandparent. The court can also grant temporary custody to a grandparent with standing; i.e., there is a strong argument that both parents have relinquished or abrogated parental rights or are unfit. If the transfer is for longer than a year, the transfer of custody of a child to a grandparent may become a permanent order requiring a change in circumstances to get custody of the child back from the grandparent.
  2. Can grandparents get custody over a father? The question does not address where the mother is. If Mother is dead or has abrogated her role as Mother, and Father is unfit (or has also abrogated), then yes, grandparents can get custody over a father. The question of whether grandparents can get custody over a mother yields the same answer.
  3. Can a grandparent have joint custody with a parent? Yes, but this requires a Consent Court Order agreed to between the grandparent and both parents, if both parents have parental rights. The arrangement may also be called “shared custody” with grandparents.
  4. Can a parent give guardianship to grandparents? Yes. When a parent is unable to care for a minor child, a legal guardianship is probably necessary. To obtain a legal guardianship, the grandparent files a petition in the court where the minor child resides and obtains a court order appointing the grandparent(s) as guardian for the minor child. Legal guardianship allows the grandparent to enroll the child in school, obtain medical care and move the minor child into his/her home in another state.
  5. Can grandparents sue for custody? Yes, if both parents are unfit. Otherwise, grandparents are limited to grandparent visitation rights, explained hereafter. Grandparents can file for custody if the circumstances of parental unfitness are there. Typical facts would be that the parents are drug addicts, homeless, alcoholics, mentally ill, or are in prison. A grandparent can fight for custody if the circumstances are right. A grandparent can take custody from parents with the right strong facts.
  6. Can grandparents see grandchildren in foster care? DSS is involved, and DSS will likely be the agency with custody or temporary custody of the minor child. This makes it tricky and up to DSS or a Judge.
  7. Can a grandparent file for emergency custody? Yes, if the child is in physical danger at the hands of both natural parents.
  8. How can a grandparent get custody of a grandchild or grandchildren? The procedure is complex, and the grandparent will need an experienced family lawyer.
  9. Can the parents agree to give a grandparent custody without a court order? Parents can let grandchildren live with grandparents pursuant to a private written agreement, but that agreement is only good as long as all parties agree. I recommend a court order.
  10. What does it mean to sign custody over to grandparents? Both parents must sign a Consent Court Order for child custody that ultimately a judge will sign.
  11. Can grandparents keep a child from a father? No, not without a court order granting the grandparents custody over the father. Obviously, if the father will put the child in danger, call the police and get an experienced family lawyer immediately. This answer would also apply to grandparents taking a child (or keeping a child) from the child’s mother.
  12. How do I find a lawyer for grandparents seeking custody? Find a North Carolina Family Law Specialist who writes about grandparent visitation.
  13. Is grandparent custody different than grandparent visitation? Yes, and please read the explanations hereafter concerning the differences.

Abrogation is a big word, but opens the door to grandparents and step-parents having child custody rights. In the child custody context, it means ceasing to parent your child exclusively or becoming unfit to parent.

In North Carolina, grandparents rights exist under two circumstances: 1) right to child custody and 2) right to grandparent visitation.

Grandparent custody: A grandparent likely has standing for custody of a grandchild if both natural parents are unfit (or otherwise cannot take care of a minor child, such as when the parent is deceased or seriously disabled). A grandparent may bring to the Court’s attention the unfit conduct (or the inability to take care of the child) and ask that the grandparent be given custody. The Court must find that both parents, through unfit conduct, have abrogated their constitutional rights under the Parental Rights Doctrine. The U.S. Supreme Court conceived the Parental Rights Doctrine, citing that parents in general have the preeminent natural right to raise their children. The unfit conduct does not have to be serious enough to terminate the parental rights of the parents.

A typical example of unfitness would be drug-addicted parents.

Grandparent visitation: The second area of rights for grandparents arises when the natural parents are in a child custody dispute in the North Carolina Courts. For example, the parents may be fighting over child custody in a lawsuit; then a grandparent can intervene in the lawsuit and ask for a visitation schedule. As another example, the parents may be denying the grandparents time with their grandchildren.

Grandparents can file a motion for visitation with the court if:

  • The natural parents are engaged in an ongoing custody case.
  • The grandparent’s relationship with the child is substantial.

A substantial relationship with your grandchildren might be demonstrated through your beautiful pictures and photo albums.

Black and White, the 2015 Kevin Costner Movie: Grandparent Custody

This is a must-see movie for grandparents seeking custody, particularly if the opposing parties are the paternal grandparents vs. the maternal grandparents. In the movie’s complex fact pattern, everyone gets it right in the end, in a movie filled with struggles. All looked after the seven-year-old Eloise’s best interests, although it is undoubtedly shaky for a while in the movie.

Kevin Costner plays Elliott Anders, a grandfather who, with his wife Carol, is raising their granddaughter, cute and vivacious Eloise. Carol and Elliott’s daughter died of congenital heart disease giving birth to Eloise, who is now seven and lives with Elliott and Carol. Eloise is in the third grade at an advanced school in Los Angeles when Carol dies suddenly in a car accident. Grandfather Elliott is immediately in the primary parent position with lots of new skill sets to learn, not to mention grieving for his wife’s sudden death.

The biological Father (Reggie Davis) is an African American and a druggie with a prison record. The paternal grandmother (“WeWe”) has a powerful brother who is a lawyer. Grandma WeWe wants custody, at least initially. Later she wants the “druggie” son to have custody, and she naively believes he is now okay and drug-free. This film is grandparent custody at its best.

The story is compelling yet troubling, between a maternal grandfather and a paternal grandmother, with disturbing overtones of race that will not be discussed in this blog. A custody battle ensues between two major LA firms, neither of whom are family law attorneys—a mistake for both sides. Maternal Grandpapa Elliott is a partner in one and the paternal uncle is a partner in the other. Both parties should have had skilled custody lawyers, and, in my opinion, these esteemed law firms should have recognized the deficiencies in the respective skill sets and referred the case to seasoned family lawyers.

The judge orders a psychological evaluation, and the psychologist is getting in the head of Eloise.

Custody factors are as follows:

Eloise’s home has always been with Elliott and Carol, but it is also apparent that Grandfather Elliott knows very little about Eloise, such as how to care for her hair, tie a hair ribbon, or even where her school is. Maternal Grandma Carol had been doing all of the hands-on parenting. Grandma WeWe had no problem with Grandma Carol but didn’t think Eloise will get the love and affection she needs without Carol on the scene.

On the paternal grandmother’s side is the fact that Grandpa Elliott has an apparent drinking problem. Now, is this grieving over the loss of Carol or something more? Whatever the source, it is a problem in this custody case. Also, Eloise has never had much exposure to her father, Reggie. As the court-appointed therapist works with Eloise, it seems her wishes regarding her father seem to grow. So Eloise’s father Reggie meets with Grandpa Elliott. Reggie needs money. Elliott seizes the opportunity for Reggie to meet with Eloise, and a meeting is arranged. Reggie is a disappointing no-show, but the $25,000 Elliot gives Reggie upon Reggie’s request becomes an obvious court problem; this was a bad idea. Don’t do this!

The highly emotional custody trial happens. Grandma WeWe is almost locked up for courtroom outbursts. Elliot makes an unfortunate speech in answer to a question violating the cardinal rule of a witness to 1) listen to the question; 2) understand the question; 3) answer the question; and 4) shut up.

Reggie is mad after the custody trial and goes to Elliot’s home with a knife. Elliot knocks the knife in the pool, but Elliot gets hurt when Reggie knocks him in the head. Reggie goes to kidnap Eloise but doesn’t and comes back to rescue Elliott from drowning in the pool.

At Court, Reggie tells the judge he is not seeking custody, and WeWe says they are satisfied with Elliot as custodian, but Elliott needs to deal with the drinking. The judge awards custody to maternal grandpa Elliott, but the families now get along—so Elliot can presumably go to alcohol rehab, and WeWe can have time with Eloise. They all lived happily ever after. It is quite a drama with a fairy tale ending but some suitable lessons for grandparents and custody.

The Rights of Stepparents or Other Third Parties

In general, the first question is whether the stepparent or other third party has the standing to request custodial rights. A complex legal question, standing should be a point of thorough discussion with your attorney. Whether there is a clearly established parent-child relationship between the third party and the child will be a key question, and this will be decided case by case on the facts, as can be seen in the case of Ellison v. Ramos, 130 NC App. 389, 502 S.E.2d 891 (1998).

In Ellison, the child was raised by the natural father and the live-in girlfriend. The biological mother was in a coma under medical care, so the Father was the only biological parent available to care for the child. When the father and girlfriend broke up, the girlfriend asked for custody of the child. The trial court determined that the girlfriend did not have standing and dismissed the case. Not so fast! Stating that the trial court had failed to consider the specific facts of the case, the North Carolina Court of Appeals took issue with the decision. The girlfriend had been handling all of the custodial duties for the child for five years, and she alleged that she had been the one handling the minor child’s specialized medical needs. The Court of Appeals indicated that, by proving she had been the “parent” for five years, the girlfriend allowed the Court to rule in the best interest of the child by placing her with the girlfriend.

The Rights of Third Parties in North Carolina Child Custody Cases: Ellison v. Ramos

While many custody disagreements involve grandparents, there are third parties who may also want custody of a couple’s children. Custody disputes can be extremely contentious and emotionally charged.

In Ellison v. Ramos, a father’s former romantic interest sued him for custody of his diabetic daughter. The father and the woman were in a relationship and resided together for some time, during which the woman acted like a mother to the child. She alleged that during her relationship with the father, she was the one who cared for the child. Even after she and the father broke up, the child lived with her exclusively for almost 12 months. The father eventually took the child to Puerto Rico to live with the child’s paternal grandparents, even though they were not equipped to deal with the child’s special needs.

The child stated that the woman was the responsible “parent” when it came to her care. The child also confirmed that the woman took the child to her medical appointments, bought her clothes and school supplies, took her to school, and even attended parent-teacher conferences. In addition, the woman provided in-home care to the child and made sure she was receiving proper care for her condition.

The woman sued for the return of the child from Puerto Rico to the United States. The trial court determined that she did not have standing and dismissed the lawsuit. She appealed.

The appeals court explained that state law was not created to give strangers the right to bring a custody or visitation lawsuit against parents of unrelated children because this type of right would “conflict with the constitutionally-protected paramount right of parents to custody, care and control of their children.”

Furthermore, the Court stated that standing may be found in a child custody matter when there is “a relationship in the nature of parent and child relationship, even in the absence of a biological relationship.” Here, since the woman had a parent-child relationship with the child, she did have standing to request custody. The Court noted that the father did not enjoy the paramount position of a parent because he had failed to take care of the child adequately and had put the child with his parents, who could not care for her properly. It is important to note that in all child custody determinations, the main focus is on the best interest of the child.

What can be understood from this case is that leaving a child in the custody of another person, in certain cases, might be considered an action inconsistent with the constitutionally protected status of a parent.

Child custody determinations may affect the rest of your child’s life, so it imperative to consider the best interest of your child.

The Rights of Third Parties in Child Custody in North Carolina: Price v. Howard: The Rule

Third-party rights to custody and visitation can be contentious and complicated. Under North Carolina law, there is a preference for biological and adoptive parents. A natural or an adoptive parent has a constitutional right to take care of the child. This includes custody and control of the child. Third parties cannot interfere with this right unless they show that a parent is unfit to care for the child, has been negligent, or has acted in a manner inconsistent with his or her protected status as a parent.

The Rule: The “best interest of the child” test should apply in custody disputes that involve biological parents and non-parents when the biological parent has neglected the child or acted inconsistently with the parent’s protected interests.

This rule was created through the case of Price v. Howard. In that case, the plaintiff (the father) and the defendant (the mother) were living together when the child was born. Sometime later, the couple separated, and the child remained with the plaintiff. When the child was six years old, the defendant sought custody of the child, but the plaintiff refused. The plaintiff then filed a custody action against the defendant. In her answer, the defendant claimed that the plaintiff was not actually the biological father of the child. DNA tests confirmed that the plaintiff was not the father, and the mother was awarded custody of the child.

The trial court explained that there was no evidence to suggest that the mother had acted in an unfit or negligent manner. The lower Court’s ruling was then subsequently affirmed by the Court of Appeals.

The Supreme Court, however, disagreed with the lower courts, stating that the presumption favoring parents was not absolute. A parent’s protected interests go hand in hand with the responsibility of the parent to maintain a primary focus on the child’s best interest.

Thus, the parent may lose the paramount status if he or she behaves in a manner not consistent with this presumption, or if he or she fails to take on the obligations that come with raising a child.

The Court concluded that the ‘best interest of the child’ test should apply in custody disputes that involve biological parents and non-parents when the biological parent has neglected the child or acted inconsistently with the parent’s protected interests.

The Court, importantly, did not strictly define which types of behavior would be considered “inconsistent” with a parent’s constitutionally protected status. However, we know that the Court said each case must be viewed on a case-by-case basis and that the biological parent’s conduct does not have to rise to the level that would warrant a complete termination of parental rights.

Child custody determinations will affect the rest of your child’s life, so it is imperative to consider the long-term implications of any arrangement for the child.