Benjamin N. Neese, Attorney, Woodruff Family Law Group
When analyzing custody, the issue of who has rights to custody of a minor is commonly focused on the biological parents of the child. In the eyes of the law, under the right circumstances, biological parents may be disfavored in congruence to “third party” individuals who assert rights to custody. Some of the most common third-party custody claims are, unsurprisingly, asserted from either the paternal or maternal grandparents. North Carolina and much of the south, is known for having strong family ties and deep communal roots where grandparents often play a large role in raising not only their children, but their children’s children. These relationships are often supplemental to the relationships between biological parents and their children, but in some situations grandparents end up being the de facto “mommy” and “daddy” to the minor children. Where biological parents display continued behavior of either unwillingness or inability to effectively parent their children, grandparents step in and seek legal intervention for the sake of the children.
When it comes to the law, courts have a duty to put the best interest of the children above all others. Under the Constitution of the United States, the biological parents of a minor have a protected interest in the custody, care, and control of their children. This is an incredibly high bar to overcome for third-party individuals seeking to assert custodial rights in opposition to those possessed by biological parents. The law provides for a vague and widely discretionary test for resolving custody disputes of this kind. While the interest of the children are intended to be promoted above all others, biological parents maintain an almost equally powerful interest that will more often than not prevail over that of third-party individuals unless it can be shown that the parents are unfit or have engaged in some “conduct inconsistent with their protected status.” Courts do not provide a bright line test in determining what conduct constitutes a violation, but some examples are behavior that leads to neglect of the children, abandonment of the children, and at times, the voluntary surrender of custody of the children. This behavior must have a negative impact on the child or constitute a substantial risk of such impact.