Can I File for Custody If I'm Not the Child's Parent?

Posted by Jonathan Jerkins | Mar 21, 2018 | 0 Comments

Child custody can get complicated when parents argue over where their child will live and how they will be raised. Even if one parent thinks they provide a better home for their child, the court's position is generally that both parents should share custody. However, custody can be even more complicated when a non-parent tries to get custody of the child.

After a divorce or separation, parents have to decide how to divide and share custody with their child. If the parents cannot come to a mutual agreement for child custody, the North Carolina family court will decide how to divide legal and physical custody between the parents. However, in some cases, other people in the child's life may argue that they should have custody of the child instead of the parents.

Before you file for custody as a non-parent, you have to have “standing” to file for custody or visitation. This means you need to have some relationship with the child that allows you to file for custody in court. Under North Carolina law, in order for a non-parent to gain custody or visitation rights against a parent, the nonparent must allege facts sufficient to prove a parent is unfit, has neglected the welfare of the child or has acted in a manner inconsistent with the parents' protected status.

When a third party (non-parent) fights for custody of a child, it is usually because the parents are not able to care for the child or they cannot provide a safe environment. If non-parents are arguing that the child's parent is unfit to raise the child, that may have to be decided before you file for custody. The court can find a parent should not have custody of their own child for a number of reasons, including:

  • Drug or alcohol abuse
  • Child abuse
  • Child neglect
  • Child abduction
  • Domestic violence
  • Mental illness or psychological disorder

Even if the parents are not fit to have custody of the child, getting custody is generally limited to certain relationships. This includes parties who have a parent-like relationship with the child, or individuals who have a biological or adoptive relationship with the child. This may include grandparents, aunts/uncles, or step-parents.

For example, a grandmother could demonstrate her parent-like relationship with a child by showing that she buys the child's clothes, takes the child to school every day, provides a room for the child, makes the child's meals, and takes the child to doctors appointments.

Parents have a legal right to physical and legal custody of their child. The courts will generally not take a child away from the parents unless there is a serious risk of harm to the child. The burden of proof is high to take a child out of the parents' custody. If you are unsure about whether there are grounds to get custody as a non-parent, you should consult a North Carolina family law attorney.

Raleigh Family Law

Going through a separation or divorce is a difficult process and you may be unsure where to turn. If you want to take a collaborative approach to your separation and avoid a contentious divorce, Jerkins Family Law can help. Located in Raleigh, North Carolina, Jerkins Family Law is committed to helping their clients in their time of need. Visit our dedicated child custody page to see how we can help you. Jerkins Family Law can help you with all your family law needs. Contact us today.

About the Author

Jonathan Jerkins

Jonathan "Jay" Jerkins, a native of Raleigh, North Carolina, intentionally focuses his practice on all aspects of North Carolina family law litigation and negotiations. Jay was admitted to the practice of law in North Carolina in 2014.


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