Filing for Custody of Grandchildren in North Carolina

North Carolina statute allows anyone who claims to have a right to custody of a child to initiate a custody proceeding. Grandparents have a broad privilege to file a custody action, but how likely are they to be successful?

A Parent’s Constitutional Rights and Parental Unfitness

Grandparents who seek custody of their grandchildren must overcome the parents’ constitutional rights. To do that, they must establish and show that the parents are unfit or that they have given up their parental rights by acting inconsistently with their status as a parent.

While the universal standard in child custody decisions is the best interests of the child, this does not apply when third parties are involved because natural parents have a constitutionally protected and paramount right to the custody, care, and control of their child. If a parent neglects their child or is otherwise found to be unfit, this parental right does not apply.

Tillman v. Jenkins

One case that showcases the difficulty grandparents may face when seeking custody is Tillman v. Jenkins. In this case, Grandmother was granted temporary care, custody, and control of her two grandchildren after Father, who had primary physical custody, was murdered. Mother appealed the order, stating that the trial court erred because it did not establish that Mother was unfit or had acted inconsistently with her status as a natural parent.

The trial court used the standard of the child’s best interest to determine custody, but this standard is only appropriate in cases involving grandparents after the issue of the parent’s constitutionally protected status is addressed. The Court of Appeals determined that the lower court did make a mistake when it applied the best interests standard because Mother had not been declared unfit, nor had the court decided she acted inconsistently with her status as a parent. The appellate court chose to vacate the decision of the trial court and sent the case back with instructions to enter a permanent custody order within 60 days.

Interlocutory Orders and Custody Disputes

Another complication in the process of finalizing custody arrangements is the interlocutory order, which was also an issue in the Tillman case. An interlocutory order is a temporary order or one that only addresses certain parts of a case. They cannot usually be appealed unless the order affects a substantial right of a party to the case.

In Tillman, the Court of Appeals decided to allow Grandmother’s appeal of a temporary custody order because of the amount of time Grandmother had already had temporary custody of the children and the expected future delay in reaching a final decision. Plus, the temporary order did not provide a specific time for the court to reconvene for a permanent hearing. Based on this, the appellate court determined that the custody order was a final order, and it proceeded on Grandmother’s appeal.

Grandparents who want to file for custody of their grandchildren in North Carolina must be able to overcome the parents’ protected status because the best interests standard does not apply until then.