Articles Posted in Grandparent Custody

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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.

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By: Leesa M. Poag, Attorney, Woodruff Family Law Group

In a typical child custody case, the mother and father of a child are seeking the intervention of the court to settle their dispute over who should be granted custody of their child.  Though this is the situation most often facing family law attorneys throughout the Triad, the cases become more complex when one of the parties seeking custody of a child is not a biological parent of that child.

This is the situation that the North Carolina Supreme Court had to address in 2003 in the case of Owenby v. Young.  In 1989, Fred and Priscilla Young were married, and two children were born thereafter.  Four years after marrying, Fred and Priscilla divorced.  Upon their separation, the former spouses executed a separation agreement that granted Ms. Young primary custody of the minor children, and secondary custody to Mr. Young.

For seven years, the parties acted and shared custody of the children under this agreement.  However, in April of 2000, tragedy struck when Ms. Young was killed in a plane crash.  At this time, the minor children were 10 and 11 years old.  Following Ms. Young’s death, Mr. Young moved the children in with him and began to exercise sole custody of the children.

But this arrangement would not last long.  After the children had lived with their father for a few weeks, Ms. Young’s mother, Priscilla Owenby, filed a complaint with the court seeking custody of the children on both a permanent and ex parte basis.  An order was entered by the court that same day granting temporary custody of the children to Ms. Owenby.  Mr. Young then filed an answer to Ms. Owenby’s complaint and a counterclaim for custody of the children.  The case came on for hearing in the trial court in December of 2000.

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Dear Carolyn,

I know I should have kept my mouth shut during the divorce, but I didn’t. My daughter-in-law ended up with custody (not that it wasn’t somewhat justified), but now she is taking it out on us and won’t let my husband and I see our own grandchildren.  We worked hard and saved all of our lives, and now we have time and enough money for trips to the beach, mountains, even Disney World, and would love to take our grandchildren, but we aren’t even allowed to take them out for ice cream.  As grandparents do we have any rights?

Carolyn Answers….

You are in luck! The judge can help you, in his or her discretion.  The glitter of Disney with your grandchildren may very well be in your future.

North Carolina General Statute 50-13.5(j) covers the rights of custody and visitation of grandparents. You will need to file a motion (a written request to the court filed with the clerk of court) if you cannot obtain the visitation with your grandchildren from one of the parents. Continue reading →

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Grandparents

Divorce can affect many relationships, and it is not unusual for grandparents to lose contact with their grandchildren in the process. Are you are a grandparent seeking custody or visitation of your grandchildren? If so, we may be able to help. At the Woodruff Family Law Group, our skilled North Carolina family law attorneys can meticulously analyze your facts and let you know your rights and options.

Under North Carolina law, grandparents can only seek custody and visitation with their minor grandchildren in certain circumstances. One such situation is if both the child’s parents are unfit (i.e., due to drug addiction, abuse, etc.) or unable to care for the child. An inability to care for the child may arise due to a serious disability or death. In such cases, the grandparents could report the parent’s unfit behavior or inability to care for the child to the court and request custody of the child.

North Carolina law allows a grandparent to intervene in an ongoing custody dispute and request visitation with a child. Grandparents cannot, however, seek visitation when their grandchildren are living in an intact family. In the case of McIntyre v. McIntyre, the paternal grandparents, whose son was deceased but had separated from his wife prior to his death, filed a claim for visitation with their minor granddaughter, who lived with her mother at the time. Since one parent was deceased, there was no custody action pending between the children’s parents. Continue reading →

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This is a must-see movie for grandparents seeking custody, particularly if the opposing parties are really the paternal grandparents vs. the maternal grandparents.  In a complex fact pattern, everyone gets it right in the end, after a movie filled with struggles.  All looked after the seven-year-old Eloise’s best interests, although it was certainly shaky for a while in the movie.

Kevin Costner plays Elliott Anders, a grandfather, who, with his wife Carol, is raising their granddaughter, cute and vivacious Eloise.   Carol and Elliott’s daughter died of congenital heart disease giving birth to cute, seven-year-old Eloise, who lives with Elliott and Carol.  Then, Carol dies suddenly in a car accident.  Eloise is in the third grade at an advanced school in Los Angeles.  Grandfather Elliott is immediately in the primary parent position with lots of new skill sets to learn, not to mention the grieving for his wife’s sudden death.

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