At Zach Jackson Law, we are frequently asked about grandparents’ rights in North Carolina. Pursuant to the Fourteenth Amendment, parents have the fundamental right to direct the upbringing of their children. This means that under most circumstances, parents have the right to prevent individuals from visiting with their children. However, the courts have recognized that grandparents and other individuals often assume responsibilities of a parental nature. It is important to protect the children who will inevitably form a close bond with these individuals. Therefore, under certain circumstances, grandparents and other individuals may obtain court ordered visitation or custody with a minor child.
If the minor child is living in an intact family and if there are no allegations that a parent is unfit, neglectful, or guilty of some other misconduct, the courts cannot award visitation or custody to a third party. In North Carolina, if the parents of the minor child have a pending action in regards to custody of the minor child, this action triggers the grandparents’ rights. The grandparents may intervene in this action and request court ordered visitation. If the courts enter a permanent custody order, the grandparents will not have the opportunity to petition the courts for visitation again unless there is a showing of a substantial change in circumstances. Therefore, if your child has an ongoing custody or visitation dispute over your grandchild, it is important to immediately consult with a family law attorney to determine if you should take legal action to protect your relationship with your grandchild.
Grandparent and Third Party Custody
North Carolina allows a person or organization to file an independent action for custody of a child if it is alleged that the parent is unfit, has died, or has engaged in conduct inconsistent with the parent’s parental status. Behaviors that could result in a court concluding that a parent is unfit include child abuse, drug addiction, alcohol abuse, mental illness, and criminal conduct. The court may find that the parents have engaged in conduct inconsistent with their parental status if they have relied on a grandparent or third party to be the primary caregiver for the child.
At Zach Jackson Law, we are experienced in and passionate about protecting grandparent rights. If you or someone you know is seeking visitation or custody, please contact our office for a consultation.
North Carolina General Statute 50-13.2 states, “An order for custody must include findings of fact which support the determination of what is in the ‘best interest’ of the child.” The courts have considered a number of different factors when determining child custody and the best interest of the child. The list below contains some of the most common factors considered by the courts when making a determination on child custody:
- Who is the primary caregiver for the child? Custody of the child will typically be awarded to the party that more often tends to the child’s basic wants and needs.
- Who is the disciplinarian for the child, and is the discipline exercised by that parent age appropriate? Child Custody will rarely be given to a parent that uses excessive or unusual discipline. However, if a parent is unable to discipline a child appropriately, this can be factor against that parent in a child custody proceeding.
- Who communicates with important figures in the child’s life including teachers, coaches, other parents, and health care providers? These people are often called to testify in child custody proceedings. The opinions of these objective witnesses is often an extremely important factor in determining child custody.
- Which parent would be a better roll model for the minor child?
- Who typically shops for the child? Which parent buys groceries, clothes, and toys for the child? In a child custody proceeding, these types of factors will assist the court in determining the primary caregiver for the child.
- Who does the child want to live with? As the child grows older, this factor will become increasingly more important. The court may ignore this factor in a child custody hearing if the child is too young to give an informed opinion, or if the court feels that the child wants to live with the parent for the wrong reasons.
- Has the child lived exclusively with either parent for any period of time?
- Has either parent demonstrated a lack of morals? For example, does either parent have an extensive criminal record? Has either parent been convicted of domestic violence or a sex offense? In a child custody cases, these types of issues are typically detrimental.
- Has either parent alienated the child from the other parent? This is one of the most significant yet overlooked issues in a child custody case. If you run into opposition from the other parent when you attempt to appropriately discipline the child, assist the child with homework, pick out clothes, and schedule appointments; address this issue immediately.
- Does one parent have a history of being vengeful towards the other parent?
- Has either parent committed adultery?
- Does either parent have a history of alcohol, gambling, or illicit drugs?
- Which parent will be able to provide the child with more suitable living accommodations? Will the child have his own room and age appropriate decorations and furnishings? Will the house be cigarette smoke free? Are there roommates or a large number of people in the house? Are their pets that may be dangerous?
- Which parent will provide for the child’s physical well being? Which parent is more likely to ensure the child gets an adequate amount of exercise, nutritious meals, and rest?
- Which parent cleans up for the child? Who does the child’s laundry, cleans his or her bathroom, and washes his or her dishes?
- Does the child have a disability? If so, is one parent in a better position to tend to that disability?
- Which parent would provide a higher quality education for the child? If one child lives in a significantly better school district, this may impact a judge’s decision. Often, this issue will have a significant impact on where the child wants to live.
- Does one parent live an inconvenient distance from the child’s current school?
- Is one parent more involved with the child’s education? Does one parent attend teacher conferences and school activities more often than the other?
- Does one parent tend to the child’s hygiene more often than the other?
- Does either parent have poor relationships with important people in the child’s life?
- Does either parent take the child around inappropriate people? For example, does either parent take the child around people that are impaired by alcohol, have a significant criminal record, or speak badly about the other parent?
- Does one parent relate better to the child’s sex? This is a factor that is often brought up in child custody cases. The parent of the same sex of the child is an extremely important roll model for the minor child. As hard as it may be, the other parent should keep in mind the importance of facilitating and supporting the relationship with the same-sex parent.
- Which parent lives in a safer neighborhood?
- Which parent is more affectionate to the child?
- Which parent spends more quality time with the child?
- Has either parent stayed home with the child? If one parent supports the family financially, and the other parent stays home with the child, it may be difficult for the working parent to gain custody of the minor child.
- Which parent typically plays with the child?
- Is either parent more involved in the child’s activities? Is either parent more involved in an activity that is particularly important to the child?
- Does one parent show a greater willingness to assist the child with special training such as art lessons or sports?
- Is one parent more capable of co-parenting with the other parent? Often, this appears to be the issue that changes a judge’s mind when awarding custody. If one parent is clearly the primary care giver, that parent occasionally develops a sense of entitlement over the child. If the court feels that the child cannot enjoy a healthy relationship with both parents due to this sense of entitlement, the court may decide to give the child to the other parent.
- Has one parent demonstrated an inability to abide by the court’s orders?
- Is one parent in a better position to provide financial support for the child?
- Is one parent in a better position to ensure the child has a relationship with his or her siblings?
- Do the facts suggest that one parent is seeking custody to avoid child support?
A parent seeking custody or additional visitation should read this list carefully. Do any of the above factors work against you? What can you do to improve the issue? Would making that change actually make life better for your child? If so, make the change. If not, do what is in your child’s best interest. For example, if the mother is better at shopping for the child’s clothes, the father should not attempt to takeover just to bolster his case. If the father is better at assisting the child with homework, the mother should not try to takeover to bolster her case.
Do not ever conduct yourself as though you hate the opposing party more than you love your child. Do not focus on maximizing the time that you spend with your child and minimizing the time that the opposing party spends with your child. Instead, focus solely on coming up with a custody and visitation schedule that is in the best interest of your child.
At Zach Jackson Law, we can assist you with all aspects of a child custody case. In addition to guiding you through the legal proceedings, we will give you constant guidance on acting in the best interest of the child. We will assist you in negotiating a parenting agreement, and if it is appropriate, we will assist in scheduling a free mediation between you and your spouse. If the opposing party is unwilling to compromise, at Zach Jackson Law, we are also ready to fight zealously to ensure that your rights are upheld.
There are a myriad of emotions and obstacles that one will experience while going through a divorce. The following post is intended to give a brief summary of the legal proceedings that one may encounter if they go through a divorce in Union County, North Carolina. Continue reading →