Drum v. Drum, 2022-NCCOA-448.
Facts: Plaintiff is the maternal grandmother of a minor child. Defendants are the biological mother and father of the minor child. Notably, Defendant Mother was not a party to the appeal; only Defendant Father appealed.
The minor child at issue in this custody case had been living with Plaintiff since she was six to eight months old. Defendant Father visited the minor child less after Defendant Mother and the minor child moved in with Plaintiff. Defendant Mother had a drug problem and was not present for extended periods of the minor child’s life.
Plaintiff and her ex-husband were the primary caretakers for the minor child. They handled schooling, homework, vacations, etc. Defendant Father was a truck driver who was on the road most days during the week. He had never been a consistent presence in the minor child’s life. He also accumulated over $10,000 in child support arrears. Defendant Father never sought custody or visitation until court proceedings began.
Plaintiff filed for custody and was awarded primary physical custody and joint legal custody. Defendant Father appealed.
Issue: Did the trial court err in granting custody to Plaintiff Grandmother?
Holding: No.
Rationale: The first issue addressed was standing. For a grandparent to initiate a custody complaint, they must first have standing to do so.
Our statutes allow for relatives to institute a custody action and require that a grandparent prove that the parents are unfit or are otherwise acting inconsistent with their constitutionally protected status as parents.
Facts that show unfitness can be: (1) the parents have not provided safe and suitable housing for their children; (2) the parents have not contributed to child support; (3) the parents have not been involved in the children’s upbringing; or (4) the children are at substantial risk of harm from the parents.
Furthermore, when a nonparent has custody for a period of time, that may result in conduct that is not consistent with the protected status of natural parents. The evidence needs to show that the parent was foregoing all parental duties.
As the facts above demonstrated, Defendant Father never showed any interest in custody of the minor child until the custody lawsuit was brought. The evidence showed that daily care was ceded to the Plaintiff. Defendant’s failure to resume custody when able further demonstrated conduct inconsistent with a parent’s protected status. He knew the minor child was with Plaintiff, was made aware that he could seek custody, then refused to do so for the past eight years.
Lessons:
Grandparents can obtain custody. This case is a one where the evidence was very clear that the mother and father really did not have an interest in raising their child. Mother dealt with drug issues, and Father was not present and ceded all decision-making and care to the grandmother.
For eight years, the grandmother raised the child as her own and took care of all daily needs, essentially filling in as the parent. Importantly, the father was made aware that he could seek custody and chose not to.