Full question:
Granddaughter lives in NC with Stepfather. Our daughter has been living in Georgia for approx 18 months and has been separated from Husband (stepfather) and her real daughter. She has 3 months left of junior year and has been kicked out of home in NC and sent to Mother in Georgia. We are grandparents and want to know if we get a temporary housing in NC to finish junior year, do we have any risk in having granddaughter taken away from the mother?
- Category: Divorce
- Subcategory: Child Custody
- Date:
- State: North Carolina
Answer:
The answer may depend on whether or not it can be argued that it is in the best interest of the child not to be in the custody of her mother or father. Whether or not a grandparent is given custody (the right to care and provide for the child) does not necessarily depend on where the grandparent resides.
In North Carolina, a “third party” is anyone other than a parent (natural or adoptive). If you want to file a lawsuit for child custody and are a third party, you need to first meet a difficult “threshold” standard: a constitutional presumption in favor of a parent’s right to choose with whom a child associates and how that child is cared for. The assumption of our courts is that a parent will make good choices for his or her children.
Therefore, if a grandparent (or any other “third party”) seeks custody, he or she must
demonstrate that the parents have been acting in a way that is inconsistent with the
presumption. That does not mean that a grandparent must show that the parents’ rights have been terminated by a court, nor does it meant that abuse, neglect or abandonment have been found by DSS. But there must, at a minimum, be compelling evidence of parents consistently making decisions that are adverse to the child.
If that hurdle (called “standing”) is met, the grandparent and the parent(s) will both be
considered as possible primary caregivers for the child. The court uses a “best interests” of
the child test in its analysis. It is in then in the judge’s discretion where the child should live.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
