Parents have the legal right to custody of their children. However, this right is not absolute and may be disrupted by a parent acting inconsistent with their parental rights or the exercise of the right would not be in the best interest of the child or children. Courts, in determining matters of custody and parental rights, typically abide by the principle of doing what is in the best interest of the child or children. In North Carolina, the incarceration of a parent does not automatically terminate parental rights.
North Carolina Law for Custody
North Carolina General Statutes Sections 50-13.1 through 50-13.8 provide the statutory basis for custody. N.C.G.S. § 50-13.1(a) permits any parent, relative, or other person, agency, organization, or institution claiming the right to custody of a minor child to institute an action or proceeding for the custody of such child. According to N.C.G.S. § 50-13.2(a), the Court shall consider all relevant factors in making determinations of custody. These factors may include, but are not limited to: the physical and mental health of the parents and children, stability of environments provided by the parents, ability of the parents to provide for the children’s needs, previous caregiving roles of parents, the character and conduct of each parent, and to some degree, the preferences of the child. Again, in consideration of these factors, the court is guided by the best interest and welfare of the minor child in awarding custody.
Termination of Parental Rights
A parent’s incarceration status will affect their ability to provide care for the child, to provide a stable environment, and potentially their ability to have a relationship with the child. Ultimately, incarceration status alone does not sever parental rights, but the implications may be grounds to do so. N.C.G.S. § 7B-1111 sets out several grounds for termination of parental rights. Among those include:
- Abuse or neglect,
- Willful failure to provide necessary care,
- Incapable of providing necessary care,
- Abandonment for at least six months, or has left the child in foster care for at least twelve months without reasonable efforts to resume custody,
- Parental unfitness.
Therefore, an incarcerated parent’s parental rights can be terminated. Termination of parental rights petitions can be filed with the court by the other biological parent, a guardian, a presumptive adoptive parent, a social services agency, or a person with whom the child has resided for two consecutive years.
In North Carolina, there is case law to support the termination of the parental rights of incarcerated parents due to the parent’s choices in prison resulting in a length delay to his projected release date and limitations to the access of programs in his case plan. See In re G.B., 377 N.C. 106 (N.C. 2021). Additionally, termination of parental rights for an incarcerated parent was appropriate when the parent had not contacted the non-incarcerated parent to inquire about the children for over six months. See In re: A.G.D., 374 N.C. 317 (N.C. 2020).
Contact an Expert Defense Attorney at King Law
If you are facing a child custody matter, you may be feeling overwhelmed and unsure of your next steps. The experienced attorneys at King Law understand your stress and are dedicated to supporting you through this challenging ordeal. Our attorneys are proud to serve their clients in North Carolina and South Carolina and help them achieve favorable outcomes for their cases. Our award-winning team has a proven track record of success and is committed to protecting your rights and delivering the best possible results. To learn more about how our legal experts can help you, give us a call at 888-748-KING (5464) or fill out our contact form today.