What Is the Difference Between Guardianship and Custody in North Carolina?

Sometimes, people use the terms “guardianship” and “child custody” interchangeably. While they have similar outcomes, they’re also specific regarding who’s involved. For someone to receive child custody, they must be either the biological or legal parent of the child in question.

Guardianship is available to people who are neither the biological nor legal parent. When a grandparent wants to have the grandchildren in their permanent care, they must pursue guardianship, not custody.

Do Grandparents Have Rights in North Carolina?

From an explicit legal standpoint, grandparents don’t have specific rights in North Carolina. But that doesn’t mean they’re unable to pursue things like guardianship if they think it’s in the grandchild’s best interests.

However, that also means grandparents need to be cautious about engaging in legal proceedings, as the court will expect strong reasoning and evidence to back up their claims. That’s one reason it’s crucial to work with a knowledgeable family law attorney who is experienced in pursuing guardianship and can guide the grandparents through the complicated process.

In What Situations Are Grandparents Able to Pursue Guardianship of Their Grandchildren in North Carolina?

North Carolina family courts don’t take this matter lightly. If grandparents want to pursue guardianship, there has to be a strong reason. Generally, one of the two following conditions must be present and documented before the court will consider grandparents’ requests for guardianship.

• The biological or legal parents are unable to care for the children because of illness or death.
• The biological or legal parents have been declared unfit by Child Protective Services (CPS).

What Causes Parents to be Declared Unfit by Child Protective Services?

Family courts prefer, whenever possible, to have children remain with their parents. That means there must be significant cause and evidence for the parents to be declared unfit. It will not be enough for a grandparent to suggest that they disagree with the way the child is being raised, what religion they’re being brought up in, etc. unless they can prove that those things are directly harming the child. However, there are conditions in which CPS may find the parents unfit, including:

• The child is a victim of or witness to domestic violence, sexual abuse, or physical or emotional injury.
• The child was threatened in the presence of a weapon or was witness to such a threat.
• The child has experienced a pattern of abuse or assault.
• The child was concealed from others by the parents.
• The parent(s) suffer from mental illness or severe addiction issues.
• Other factors are present that aren’t in the child’s best interests.

Identifying and proving that parents are no longer capable of caring for a child and the child’s best interests is a difficult and often emotional process. It’s highly advisable to work with an experienced attorney.

What Does Family Court Look for When Grandparents Pursue Guardianship of Grandchildren?

First and foremost, the court looks at what’s in the child’s best interests. Suppose there are other people who are neither legal nor biological parents seeking guardianship (older siblings, uncles and aunts, close family friends, etc.). In that case, the court will want to know that the grandparents are going to be the best choice for the grandchildren.

This is not an exhaustive list but is meant to provide an overview of what the courts might want to see before awarding guardianship to grandparents.

• Relationship with the grandchildren. Being able to document that the grandparents have previously had a strong, close relationship with the children may make an enormous difference. Grandparents who haven’t been involved in the grandchild’s life may not be viewed as the best choice if there are other options. This involves not just living down the street and visiting occasionally but also having a history of caring for the child and being involved in multiple aspects of their life, including school, church (if applicable), and extracurricular activities.
• Age and health of the grandparents. Raising children is demanding, physically and emotionally. If the court believes the grandparents are physically in good shape and mentally sound, that may help their case.
• Living arrangements. Where the child will live is a key factor for the courts when removing them from their parents. If the grandparents live near the child so the child can maintain friendships, attend the same school, see the same doctors, etc., that could be in their favor. But this also means the home itself. The court wants the child to live somewhere safe and well-maintained.
• Financial means. The court will want to know that the grandparents are prepared to support the child and are able to provide comfortably for the basic needs, including housing, food, clothing, and medical care. That doesn’t mean grandparents have to be wealthy and provide an extravagant lifestyle, but they do have to prove they can reasonably manage the financial responsibilities of childraising.

What Should We Do if We Want to Pursue Getting Guardianship of Our Grandchildren?

Call Kreider Attorneys at Law as soon as possible at 336-770-2017 to schedule a consultation. We understand how important it is for you to pursue guardianship and how stressful it is to feel that this is necessary. Our team of experienced, knowledgeable family law attorneys knows that the laws regarding guardianship for grandparents are complex and nuanced. We can review your case and help you understand what the possible outcomes could be and how to achieve them.