GRANDPARENTS AND CUSTODY

GRANDPARENTS AND CUSTODY

By:  Ashley Lamm

            All too often I get a call from a concerned grandparent that thinks their son or daughter doesn't have the ability or desire to care for a goldfish let alone a child.  This leads them to believe that the logical thing for them to do is to pursue custody of their grandchild, but do they have the right?  Haven't you heard somewhere that grandparents don't have custodial rights?  Many questions surround cases like this and as with most areas of the law, the answers aren't always as crystal clear.

            Grandparents' rights to custody and visitation differ from state to state.  While many people think grandparents do not have any custodial rights to children, this is not entirely the case.  Certainly, North Carolina, like every state, acknowledges a parent's constitutional rights to custody of their children but the courts always seek to protect the welfare of every child based upon their best interests. 

            Chapter 50 Section 13.5(j) of the North Carolina General Statutes states in part as follows:

In any action in which the custody of a minor child has been determined, upon a motion in the cause and a showing of changed circumstances pursuant to G.S. 50-13.7, the grandparents of the child are entitled to such custody or visitation rights as the court, in its discretion, deems appropriate. As used in this subsection, "grandparent" includes a biological grandparent of a child adopted by a stepparent or a relative of the child where a substantial relationship exists between the grandparent and the child.

            While this statute certainly opens the door for grandparents to intervene in cases where the court may deem it appropriate it does not necessarily mean that a grandparent can challenge a mother or father for custody just because they let the child play video games all day long or because the child won't tuck his shirt in.  The reality is the law is crafted in a manner that leaves plenty of discretion with the trial judge in determining when it is appropriate to order visitation in these cases but in order for grandparents to gain custody in favor of a child's parents, there probably has to be some significant factors present that affect the welfare of the child.  In fact, it is widely recognized that a parent's interest in the companionship, custody, care, and control of their children rises to the level of a liberty interest and is protected by the Due Process Clause of the Fourteenth Amendment. U.S.C.A. Const.Amend. 14 citing Bennett v. Hawks, 170 N.C.App. 426, 613 S.E.2d 40(2005).  This means a parent's status is protected by the constitution but this protection isn't absolute if a parent acts in a manner deemed to be inconsistent with this provision.  Our courts have stated that a parent may no longer enjoy a paramount status and a constitutionally protected interest in the care and custody of child if his or her conduct is inconsistent with the presumption or if he or she fails to shoulder the responsibilities that are attendant to rearing a child; conduct inconsistent with the presumption includes, but is not limited to, unfit behavior, neglect and abandonment. Id at 42.  In my experience, I find the courts tend to look at a parent's ability to care for the child and their recent history in doing so.  Such ability is usually hindered when that parent has a substance abuse problem or the child is subjected to domestic violence.  These by no means are exhaustive of the reasons why a court may see fit to award custody to grandparents but as I suggested earlier, the reasons are typically serious in nature and greater than differences in parenting philosophies.  That notwithstanding, the court puts a higher burden of proof on the grandparent in these cases than when only mom and dad are fighting over who gets the kids.  A grandparent must prove to the court by "clear and convincing evidence" that the parent has acted inconsistently with his or her constitutionally protected status whereas the typical case between two parents only need be proved by the preponderance of the evidence, a lesser standard that simply tips the weight of the evidence in one's favor. 

If you are concerned or even afraid for your grandchild's welfare or safety because their mother or father is still acting like children themselves, you may want to seek the opinion of an attorney about your case.  You may find that it may be the best thing you could do for the child and their parents.

Ashley Lamm is an attorney in the Charlotte office of Knox Law Center. The firm's website is www.knoxlawcenter.com.  He can be reached at 704-315-2363 or 866-704-9059 (Toll free) or alamm@knoxlawcenter.com