What We Know

Custody Considerations Involving Grandparents and Other Third Parties

January 7, 2015 | by

It is not uncommon for custody issues to arise between parties other than the separated or divorced parents of a child. Irrespective of whether a third party seems to be acting in concert with or against a biological parent, it is important for a biological parent to understand his or her rights with regard to custody of his or her child.

Grandparent’s rights to visitation with a grandchild is a common issue, particularly when a child’s parents are divorcing or the grandparent questions one or both parents’ ability to care for the child. In Eakett v. Eakett, the North Carolina Court of Appeals held that a grandparent cannot sue for visitation with a grandchild unless there is an ongoing child custody dispute and the child’s family is not “intact”. Various interpretations of “intact” since then have shown that even a single parent and a child may constitute an intact family. Grandparent rights have been somewhat limited by North Carolina courts, and whether a grandparent has rights to visitation with a child should be determined on a case-by-case basis.

Other issues involving third-party rights arise when a parent relinquishes some or all of his or her parenting rights and duties to a third party. During times when a parent is unable to care for a child for an extended period of time (such as when a parent becomes incarcerated, is committed to a rehabilitation or mental health facility, or is out of the state or country for an extended period of time due to work or school), that parent may elect to leave the child in the custody of a third party. Potential issues may arise later when that parent returns to take custody of the child and the third party resists. Depending on the circumstances of the case, the parent may have acted in a manner inconsistent with his or her constitutional rights as a parent, thus giving the third-party standing to sue for custody of the child.

Parents on the front-end of custody issues with third parties may diminish the likelihood of potential problems by exploring powers-of-attorney, contracts and other legal documents that discuss custody and visitation issues and attempt to limit third-party rights. Parents currently in the middle of a custody dispute with third-parties should evaluate the potential rights of a third party and the immediate actions that the parent should take to protect his or her rights moving forward.

If you have questions or would like to additional information on this topic, please contact attorney Leslie Marion at 919.250.2239 or by email at lmarion@smithdebnamlaw.com.

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