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June 6, 2019 Blog

I’m a Grandparent. Can I Seek Custody of My Grandkids?

By: Stephanie J. Gibbs

grandparents with their grandchildren after winning custody

In recent years, more and more grandparents have successfully sought “grandparent visitation” with their grandchildren during a custody lawsuit. Several North Carolina laws have allowed courts to grant grandparents regular, independent visitation if they can show the court that they have a “substantial relationship” with their grandkids and visits with their grandparents are in the grandkids’ “best interest”. These grandparents get to see their grandchildren even if one or both of the kids’ parents object, and the right to visitation continues even if one of the parents dies or is otherwise unable to have physical custody.

But what about situations where grandparents believe it is in the “best interest” of their grandkids that neither parent have custody of the children, and that they, the grandparents, be awarded custody? This situation most frequently occurs where the children’s parents have substance-abuse issues, mental-health problems, a history of domestic violence, or a parent has a life-threatening illness. Sometimes, Child Protective Services is involved. And, sometimes, one parent has died, and the children are in the care of the surviving parent.

What can a grandparent do when they believe their grandkids are at risk, and that they should seek custody of their grandchildren?

grandparent holding hands with two children

North Carolina law allows “any parent, relative, or other person” to seek custody of a child. That includes grandparents. This type of lawsuit is often called a “third party” custody action. North Carolina law regarding third-party custody actions is different from “grandparent visitation” because instead of seeking only visitation, “third-party” grandparents seek primary or sole custody of the child, meaning the child would live with the grandparent, and the grandparent would step into the role of the child’s parents. It is important to remember that grandparents who are awarded custody of their grandchildren become financially responsible for the children until the children are 18 years old and graduate from high school.

However, grandparents seeking custody of their grandchildren must overcome a high legal hurdle before a judge may even consider whether granting them custody is in the grandchildren’s “best interest.” Before a judge may decide whether it is in the “best interests” of the child that a grandparent have sole or primary custody, the court must first determine whether the child’s parents are unfit, or whether their conduct has been “inconsistent with his or her constitutionally protected status as a parent.” Federal and state courts have established that a natural parent’s right to custody of his or her child is protected by the U.S. Constitution, unless the court finds that a parent has abused or abandoned the child, or otherwise acted in a way that is “inconsistent” with their parental rights.

What does “unfit” mean, in the context of a custody case? And what type of behavior is “inconsistent with (a parent’s) constitutionally protected status as a parent”?

grandfather holding hands with his granddaughter

North Carolina courts have found that parents who have physically abused their children are unfit. Parents who have neglected their children by not providing them with a safe home and the basic necessities, or who have failed to have a responsible adult care for their children while the parents are gone from the home for substantial periods of time (days, not hours) have been found unfit. Parents who consume alcohol and drugs to excess have been found to be unfit, as have parents who have committed acts of domestic violence, or repeatedly allowed another person to commit acts of domestic violence in the children’s presence, also have been found unfit to continue in their roles as primary caregivers of their children. In these situations, Child Protective Services may step in to take temporary custody of the children, and may reach out to the children’s grandparents to serve as alternate custodians of the children, at least on a temporary basis.

Behavior found to be “inconsistent” with a parent’s constitutional right to custody of their child has included one parent’s murder of another parent; failure to support the child financially; and abandonment, or lack of substantial involvement in the child’s life. “Third-party” custody actions may require grandparents to testify against their adult children. They also may involve private investigation into the conduct and lifestyle of the parents if Child Protective Services or other agencies have not been involved, or have not substantiated reports of child abuse or neglect.

Grandparents seeking primary or sole custody of their grandchildren should obtain strong and knowledgeable legal representation. If you have questions about whether you should seek custody of your grandchildren, please consider calling Gailor Hunt Davis Taylor & Gibbs, PLLC. We will assess your situation and explain your legal options. If you decide to seek custody of your grandchildren, our attorneys will represent you through this life-changing step in your – and your grandchildren’s – lives.

In our Podcast, Jaime Davis discusses the topic of grandparent visitation with her law partner Stephanie Gibbs, who often represents grandparents involved in custody disputes.

Podcast 8: Grandparent Visitation
Click Here To Listen!
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Stephanie Gibbs is a North Carolina Board-Certified Specialist in Family Law, a certified Family Financial Mediator, and a former award-winning investigative journalist. She is a member of the North Carolina Chief Justice’s Family Court Advisory Commission, and the Local Advisory Committee of The Childs Advocate, a project of Legal Aid of North Carolina that seeks to give children a voice in high-conflict custody cases. If you have a question about this article, you may email Stephanie at or call her at (919) 832-8488.

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