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Getting Custody Back From the Grandparents

By: Y Michael Yin, JD

In North Carolina, a parent can lose custody over their minor children to the children’s grandparents. One way this can happen is by Order of the Court in a child custody proceeding. Child custody is never permanent, and below we discuss a way for parents to regain custody by motion to the Court.

Step 1: Showing that there is a substantial change in circumstances affecting the welfare of the child

The parent seeking to modify the custody order and reverse it has the burden of proof; they are the ones that must show to the Court that the circumstances have changed enough in order to modify the order and reverse the initial determination. This step may address the reasons why a grandparent was given custody in the first place. Two of the ways a parent can lose custody to a grandparent are if they are found to be unfit or if the parent abrogates that parent’s exclusive right to be a parent.

What are substantial changes in circumstances? The statutes do not say. However, in looking at our case law, we know that positively addressing the reasons why custody was lost in the first place is usually a step in the right direction. Other changes (positive and negative) include new jobs, the ability to spend more time with the children, a new healthy relationship, undergoing treatment for any condition that is related to childcare (e.g., alcohol abuse), a reduction in time or income, a new relationship that is unhealthy or abusive, violation of custody orders, new unstable living conditions, remarriage, and relocation. We also know that blanket statements that the child is “not doing well” are not enough to warrant modification. Hence Step 2.

Step 2: Showing that the substantial change in circumstances warrants modification because modification would be in the best interests of the children

The key is to relate the substantial change to the interests of the child, not the parent. It is necessary to show how the substantial change impacts the children’s physical and emotional well-being. Simply alleging that the “child does better” with Mother rather than Father is not enough to modify a child custody order. Even those substantial changes above need to relate to a reason why it is better for the child (e.g., Father has a new job and earns more; he can support the child better; his new job is on a fixed schedule so he has consistent time with the child; the child will benefit from the relationship with the father). Some substantial changes are self-evident: instability in living conditions, violations of custody orders, and hiding the whereabouts of the kids do not require making the logical connection to why modification was proper. Even so, it would be good practice to make those connections and guide the Court through the reasons why it is in the best interests of the children to return to the care and custody of the parents.

NOTE: In modification proceedings, a court will not presume that there is a preference for the parents against nonparents.

This is an important distinction. In the initial custody proceedings between parents and nonparents (grandparents), you may have heard that in North Carolina there is a constitutional presumption that the parents have a right to custody and control of the children. However, since the initial determination is where this presumption would have been at issue, in the subsequent modification setting there will be no constitutional presumption given.