Custody battles over children can be a very difficult and emotional process for all the parties involved. Care for a child sometimes does not just involve their biological mother and father; many families now rely on the assistance of other parties such as grandparents, aunts and uncles, cousins, and family friends to help raise a happy and healthy child. In situations of divorce and separation of a couple, the third parties involved in helping to raise the child can sometimes be overlooked, or pushed away in order to punish the other party, which only ends up punishing the child.
Traditionally, courts try to stay out of the legal decisions of parents in deciding who will get visitation with their child. When determining custody, the court must find that the caregiver is fit and proper to care for the child and has the best interest of the child in mind. While both mother and father have equal rights to custody, there are many factors that come into play when determining who is most fit for care.
A court can determine whether sole or joint custody is best for the child in the event that the parents are not able to come to an agreement. Sole legal custody is when one person, usually a parent, has the exclusive authority to care for and decide the best interest of the child. Joint custody is granted to both parents and can either be equal custody or may be a prior established arrangement. Custody can be determined by the parents in a parental agreement or separation agreement as well.
Third Party Custody
Legal rights that parents are afforded regarding their children can be changed if the parent agrees to custody or visitation with their child by a third party. In order for a third party, which includes grandparents, to gain custody of a child, they must first overcome the legal standard set in place regarding other parties and legal custody of children. The third party must show that the parent is acting inconsistently with the presumption that the parent is presumed to make good choices for whom a child may associate with and how that child is also cared for. While this standard does not require drastic measures in order to gain custody, there must be a substantial amount of evidence which can demonstrate the parent’s inability to make the best decision for the child.
If the third party is able to show that there is inconsistency, the court will then determine what level of care the child needs or deserves from the third party by assessing the best interest of the child. While North Carolina does not give specific factors it assesses for determining the best interest of the child, they consider all the relevant factors in the child’s life. Some of the relevant factors may include where the child is currently living, whether there are other siblings also in the home with whom they seek to stay, the relationship the child has with both parents, whether there is a stable home environment, and the ability for the parent to provide for the child consistently.
While it may be difficult for a third party to be granted visitation rights depending on their geographic location, North Carolina seeks to address this issue by providing for electronic visitation rights. Depending on the situation, a court may write in scheduled electronic communications appointments by which the parent, grandparent or third party gets to “visit” with the child. In determining whether this is feasible, the court looks at whether the electronic technology is available and affordable for both parties involved; if it is not viable, the court will look at different options; however technology is not just electronic video-chatting, it also includes talking over the telephone, instant messaging, as well as email.
While grandparents do not have outlined legal rights to custody or visitation of a grandchild, the court can override protections afforded to parents in the event that the grandparent can show they have provided primary care for the child and the parent has not actively attempted to be involved in the life of the child after the grandparent started caring for the child.
In order to be granted visitation by a North Carolina court, the grandparent cannot just bring a custody dispute to court, there must be an ongoing custody dispute or a newly arising dispute. Once a new dispute is open in court, the grandparent can then seek visitation rights of the child. This also applies in situations where custody is being reviewed due to changed circumstances. If the grandparent finds that the biological parents are not upholding or being inconsistent with the responsibilities they are given by law, the grandparent will be able to seek custody as a third party. While we all seek to have our familial relationships work, when a new party comes into the picture, the dynamic can shift. If a stepparent seeks to legally adopt the child, the grandparents have legal status to seek continuing visitation to ensure their relationship with the child does not change.
While it may seem discouraging at some points, if you are a third party seeking visitation rights of a child, do not stop trying to be involved in the child’s life. Although the order entered may not be in your favor initially, if circumstances change in the future, you may be able to seek modification and demonstrate your commitment to assisting in caring for the child.
Contact a Family Law Attorney Today
If you or someone you know is seeking custody or visitation rights of their child or a child who they have cared for, we can help you establish a viable defense as to why you should be granted rights. Please do not hesitate to call The Offices of Remington & Dixon, PLLC or get in touch using our live chat feature on our website or the messaging center. Our dedicated family law attorneys in Charlotte will help you fight for what you deserve.
Jennifer is a founding partner at Remington & Dixon, PLLC. Jennifer concentrates her practice in the areas of family law, wills & estates, unemployment benefits appeals, and traffic. At Elon University School of Law, Jennifer was the vice president of the Public Interest Law Society and a member of the Family Law Society. During law school, Jennifer interned at the Elon University School of Law Field Placement Clinic with Legal Aid of North Carolina where she represented clients in domestic violence court proceedings.