North Carolina is a “parental presumption” state. The “parental presumption” means the best interest of a minor child is assumed to be staying in the custody of their biological or adoptive parents. For example, if you or someone you know wishes to gain custody of a minor child, but are not the child’s parent (e.g. grandparent, step-parent, etc.) the parental presumption must be defeated.
Third-party custody action may be brought by someone who is not the child’s natural or adoptive parent but has a relationship like that of a parent-child, by showing that the natural parents are unfit or act inconsistent with their parental rights, and displaying to the court that placing the child in their custody would be in the child’s best interest.
To defeat the presumption, a person intending to claim custody of the child who is not the biological parent, also known as a third party, must prove the parent(s) unfit or that they have acted inconsistently with their custodial rights.
First, a biological parent may be found unfit by the court when they fail to provide proper guidance, care, or support. Additionally, if the parent has abused or neglected the child, or if they have substance abuse struggles, they may not be fit to have custody. If a parent actively harms the child or behaves in a way that potentially puts the child in harm’s way, the court may find them unfit and remove the child from their custody. These determinations are often less complicated as evidence of harm, real or threatened, is taken very seriously by the court.
However, if a parent is not found to be unfit, their parental presumption may also be lost if they act inconsistent with their right to custody. Deciding if a natural parent has acted inconsistent with their rights is a more complicated task as there is no clear rule. Actions that courts have previously found to be inconsistent with parental rights are extended periods of abandonment and willfully leaving a child in the custody of someone else without expressing temporary intent for doing so. These “inconsistent” acts do not need to be to the level required to terminate parental rights entirely.
Even after going through the steps necessary to overcome the parental presumption, the court must still assess if placing the minor child in the custody of the non-parent third party is in their best interest. Evidence and testimony often must be presented which can require extensive effort and time as well. If the court grants custody to the third party, it may be a temporary or permanent order and such matters may become lengthy and complicated. The legal priority in North Carolina is always making sure the minor child ends up in a situation that promotes their best interest.
Third-party custody situations are often complicated and tense. That is why hiring an experienced, family-law-oriented firm like King Law is so important. We are here to help you! Contact us at 888-748-KING (5464) to schedule a consultation.