Greetings! We hope that you have all enjoyed a wonderful Labor Day weekend. In our last post, we talked about one of our most commons questions – “Can I get a divorce?”. Another one of the most common questions we get is – “I’m the grandparent of _______… can I get custody or visitation?”
While the legal answer is “it depends”, here’s a few key pointers to keep in mind. Because of how North Carolina views grandparent custody, it is definitely an area of law where you should seriously consult an attorney.
The first presumption in the law is that the rights of “mom and dad” (i.e. parents) come first.
In other words, if Mom and Dad are legally intact and there’s no custody dispute, etc., then their wishes about grandma and grandpa are controlling. For an unfortunately typical example, if Mom and Dad say that grandma and grandpa cannot have any contact with the child, then that is final, unless an exception below applies.
In the North Carolina, an important case (Petersen v. Rogers) confirmed the common law rule that the “[parent’s] constitutionally-protected paramount right to custody, care, and control of their child, including control over his associations, outweighed the [grandparent’s] interest. This is often called the “Petersen presumption”, in which the parent(s) in an intact family get the first and final say in what happens to their children, barring allegations of parental neglect, abuse, or unfitness.
So, can I file a custody or visitation action? Or is it hopeless?
First, if mom and/OR dad are “intact”, then the grandparent does not have standing. Intact means that if even just one parent is in good shape, then the parent or parents have the right to govern the custody, care and control of the child.
However, if both parents are unfit – meaning they’ve neglected their duties as a parent so much that a court feels that they have waived their rights to have the primary control, then the grandparent would have standing to sue for custody.
In legal terms, it is called “intervening”, as you are jumping in the middle of their court case. All you would have to prove then is that you have a substantial relationship with the child(ren), which despite the word substantial, is a relatively low hurdle. There are two key things to factor in here:
1) You can easily seek visitation once you have properly intervened in the case – you do not have to prove unfitness. BUT,
2) if you want custody (i.e. legal control and decision making authority), then you have to prove that both parents are unfit and have acted inconsistent with their “Petersen presumption”.
So what is “unfit”?
Being an unfit parent is a separate topic that could fill an entire blog post, but a short summary is as follows: If DSS (Dept. of Social Services) or CPS (Child Protection Services) conclude that parent has abused, neglected or abandoned a child, that would be a strong example for a judge. (Please note though that DSS/CPS deciding that does NOT bind a judge to agree that it rises to the level sufficient to take aware their primary rights). As Legal Aid puts it, “[b]ut there must, at a minimum, be compelling evidence of parents consistently making decisions that are adverse to the child.”
OK, so what if I prove they are unfit? Then what?
Once you prove that the parents are “unfit” – then you are now on equal footing, and you have to prove to the court that it is in the child(ren)’s best interest to be with you. You might prove that by testifying how well the kids are behaved with you, or how their grades went up when they lived with you. You might also call the child’s teacher(s), counselor(s) or other witnesses who can attest how good you are with the children. One thing you probably cannot do, in most circumstances, is have the children testify. While they CAN testify, most judges do NOT want you to put a child on the stand – as I can attest, it is a personally scary thing as a 6 or 7 year old to testify to a judge. I remember my own experience, as brief as it was, very vividly to this day. An older child (teenager) who wants to and is willing to testify – maybe, but a child under 13, probably not at all. Your best plan would be to testify yourself and/or have the children’s counselor/pastor/teacher/therapist/etc. testify. You also want to show how you would be able to care for the child if the court awards custody to you – i.e., space in your home, transportation to school/daycare/etc., sufficient funds to provide for basic needs until if/when child support is established, etc. The court has a lot of discretion, and even though a parent might be unfit, it still might find that it is best for the child to be with mom or dad.
As you can tell, grandparent custody is a field of landmines and contains many pitfalls for the unsuspecting grandparent. If you want to seek custody and/or visitation with your grandchild in the Forsyth/Alamance or surrounding counties, contact our offices today and let one of our attorneys assist you in trying to obtain legal custody or visitation rights for you.