Grandparent Custody Rights
Successfully obtaining custody of a child can be one of the most monumental and rewarding moments in your life and that of a child you love. The child custody process is often legally complex, time consuming, and may even be emotionally challenging for all involved.
Grandparents may feel compelled to seek custody of a biological grandchild. Indeed, sometimes people throw around the term Grandparents Rights without fully understanding there is actually a relatively narrow set of circumstances when custody may be awarded to a grandparent.
NC and SC both provide pathways for grandparents to seek custody of their grandchild or grandchildren, but that is by no means automatic. It’s not really a matter of your rights as a grandparent.
Instead, courts look a series of factors with the ultimate goal of protecting the child from harm and otherwise ensuring their best interests. It helps to consult with a Carolina family law attorney to evaluate the intricacies of adoption laws in North Carolina and South Carolina.
At the Powers Law Firm PA, we help people with child custody issues. We recommend legal representation from initial stages of seeking permanent custody to the finality of the process, assuming there are legal grounds to do so.
Under the North Carolina Constitution, biological parents have a right to the care, custody, and control of their minor children. Therefore, grandparents cannot seek custody of their grandchildren solely on the basis that the child would be better served by living with the grandparent(s).
In fact, there are limitations as to when a grandparent may seek custody of a minor child under North Carolina law. That is, in order for grandparents to properly file for custody, they bear the substantial burden to show to the satisfaction of the Court (a District Court Judge in NC) that:
- Both biological parents are unfit as parents (unfit is a legal term with special meaning and is not related to physical fitness) or
- Both biological parents have died or
- The parents have abandoned or neglected the child
- The parents have acted inconsistent with their constitutionally-protected status
- Voluntary relinquishment of custody
- Failure to care for the child
- Drug / substance abuse
**For an in-depth summary of the statutory law governing grandparent custody and grandparent visitation, click here.
Even if the grandparent(s) are able to establish (by substantial evidence in family court) the biological parents are unfit or have signed-over custody rights, they are not automatically granted custody of the child or children.
In North Carolina, there is a second step the process, requiring the Judge to evaluate the best-interests of the child. In NC, that is often referred to the “polar star” to guide the Court in its decision-making process.
The “best interests” of the child is an incredibly important standard of review. The Court must consider whether the child will substantially benefit in terms of the child’s physical, emotional, social, and spiritual growth and their overall well-being.Grandparent Custody in South Carolina
In South Carolina, a grandparent must establish they are a de facto custodian of the child in order to gain custody of the child from a biological or adoptive parent.
South Carolina courts impose a rigorous standard of proof upon the grandparents to establish he or she is a de facto custodian. That is, the grandparent(s) must prove by “clear and convincing evidence” evidence that he or she has been the primary caregiver and financial supporter of a child who has lived with him or her for at least six months (if the child is under three years old) or for at least one year (if the child is older than three).
In SC, grandparents often wait to file suit for custody in order to meet these time periods because South Carolina law does not count any days after suit is filed.
Once a grandparent establishes they are a de facto custodian, the court evaluates whether the grandparent(s) have established by clear and convincing evidence that the:
- the parents are unfit or
- that other compelling circumstances exist.
Similar to North Carolina family laws, a grandparent in South Carolina may seek to establish a parent is unfit by showing abuse, neglect, failure to care for the child, or alcohol and/or drug abuse.
Grandparents face an uphill battle, in that a substantial (if not an overwhelming) amount of evidence must be presented to satisfy compelling circumstances to grant a grandparent custody of a child.
South Carolina recognizes the Psychological-Parent Doctrine, which allows for a third-party to request custody of a child. South Carolina courts look to four factors in determining whether a psychological-parent relationship has been established:
- whether the biological or adoptive parent(s) consented to, and fostered, the third-party’s formation and establishment of a parent-like relationship with the child;
- whether the third-party and the child lived together in the same household;
- whether the third-party assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation; and
- whether the third party has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.
If you are seeking the custody of a grandchild, please do not hesitate to contact us at the Powers Law Firm. We understand the intricacies and complexities of North Carolina and South Carolina family law and can guide you through the process.
Attorneys Bill Powers, Megan Powell and Chris Beddow are all licensed in North Carolina and handle North Carolina family law matters. Attorney Chris Beddow is the sole attorney licensed in South Carolina and handles all South Carolina family law matters for the firm.