Can Grandparents Get Custody of the Kids?

This is such a frequently asked questions by both grandparents, and by spouses concerned that their (soon to be ex) in-laws will get custody of their kids if something were to happen to them or their spouse. The first thing to point out is that there is a difference between custody and visitation rights. Custody is when you actually have the children most of the time and you are acting in a parenting role. You are essentially their legal guardian and care for them on a day-to-day basis. Visitation rights is when you are legally allowed to visit with the children and sometimes a person can be granted overnight visitations but someone else will have actual custody of the children. In order to get any visitation you do have to file a custody suit, but requesting visitation is not the same thing as requesting full custody.

So when can you file for custody if you are a grandparent? It may not be as easy as you think. There are two ways a grandparent could have standing to file for custody. The first way is by showing you have a parent-child like relationship with the child or children you are trying to get custody of. For example, if the children have lived with you for the past several years, or stay at your house five nights a week then you may have standing. You have to show you are the person that takes them to school, pays for their clothes and food, takes them to doctor’s appointments and participates in parent-teacher conferences. You need to show you are essentially the child’s parent.

The other way grandparents can get standing in North Carolina is if there have been claims of abuse, neglect, or unfitness against the actual parents of the child. The grandparent must allege facts related to these claims of abuse or neglect in their custody case.

Another factor considered in addition to claims of abuse or neglect is whether the parents have given up their rights as a natural parent or have behaved in a way that is inconsistent with their status as a parent. An example of this would be the parent voluntarily giving the child to another person to care for over an extended period of time, normally without financial support or very little financial support. So for example, if a single mother has in the past 4 years given her child to her sister for three years, then an old boyfriend (who is not the father) for a year and during these time periods has had little contact with the child and has provided little or no financial support for the child. However, there are many factors that must be considered before you can say that the parent acted inconsistent with their rights as a parent. For example, was whoever had custody of the kids only supposed to have custody until the mom could get back on her feet? Was it clear that the parent was trying to get the kids back as soon as possible? Did the mom say that the kids were only staying with the other person for a temporary amount of time? In order to prove that they were acting inconsistently with their status as a parent, you pretty much need to show that they have not cared about these children as a parent and other people have been raising the child/children for a significant period of time now. Another thing to consider is that any separation of a parent and their child must have been voluntary. If a parent has been involuntarily separated from their child then they have not acted inconsistent with their parent status.

The key here is that grandparent custody cases are really dependent upon facts. So the chances of a grandparent actually getting custody of the kids varies greatly on a case-by-case basis.  A grandparent probably has a better shot at requesting visitation over full custody of their grandchildren if there is already an open custody case. Please feel free to call our office at (980)225-1832 to set up a low-cost consultation to discuss your possible case.