Can Someone Other Than a Parent Gain Custody of a Child in North Carolina? (Part 1 of 2)

Many assume that a child’s parent always comes first in a custody dispute. Grandparents, aunts and uncles, even cousins couldn’t possibly stand a chance against a child’s mother or father. Many also assume that if you were never properly served with court papers, any following order can be undone later.

Assumptions do not make a legal case – and a 2024 North Carolina Court of Appeals decision, Ledford v. Ledford (910 S.E.2d 284 (N.C. Ct. App. 2024)), offers an example worth exploring.

Note: Unlike many appellate decisions, Ledford v. Ledford is a published opinion – meaning this case can serve as precedent for similar North Carolina cases.

Background of Ledford v. Ledford

Before considering what the outcome of Ledford v. Ledford can tell us about custody decisions, it’s important to get all the details of this particular case.

The case centered on a child born in 2019 who lived with her maternal grandmother from birth. The grandmother was the child’s primary caregiver, as well as their financial provider.

The child’s birth mother struggled with addiction and left the home in December 2021. The child’s father, whom the family said could not have supported the child on his own, handed her over to maternal cousins in February 2022. The cousins, who lived in South Carolina, assumed the role of full-time caregivers.

That web of relationships led to a complex custody battle:

The grandmother filed for emergency custody of the child and was granted an ex parte order.
The cousins intervened soon after, asking the court to grant them custody.
The parties signed a consent order that gave the cousins primary custody and the grandmother secondary custody. It also allowed for supervised contact for the child’s parents.
A series of hearings led the trial court to enter a permanent order in September 2023.

That final, permanent order granted the cousins sole legal custody, care, and control of the child. It granted the grandmother visitation rights and only allowed for parental contact under supervision at the cousins’ discretion – a decision the mother appealed.

Can You Undo a Custody Order If You Were Never Served?

The child’s mother appealed the order with a particular argument: the entire order should be void because she had never been served with a summons in the custody case.

The Court of Appeals disagreed with her argument – not because she had been served, but because of her actions during the case.

A problem with a summons can affect a court’s power over a specific individual, and that kind of defect can be waived. If a party shows up to court and takes part in a case without objecting, they hand the court authority over them anyway.

In Ledford v. Ledford, the child’s mother had:

Signed the consent custody order
Appeared in court
Been represented by an attorney who questioned a witness during the hearings

At no point during the process had she claimed she had not been served. By participating in the case, she waived the issue entirely, and the order stood.

This is an important lesson for those going through custody hearings: if you believe you weren’t properly served, you must raise that objection at your very first opportunity. Taking part and then objecting is typically too late.

Part 2 will discuss the ramifications of Ledford v. Ledford, and what “Standing” means.