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Can I get custody of my grandchild if their parent is mentally ill?

| Mar 8, 2021 | Family Law

Under the right circumstances, third parties such as grandparents can seek custody of children in North Carolina. In order for that to happen, you must show either that the child’s parents are unfit or that they have failed to act in accordance with their constitutional rights as parents.

Serious mental illness may be enough to show that a parent is unfit. Showing that one parent is unfit, however, is not enough unless the other parent has died or is otherwise unfit or has forfeited their exclusive right to parent the child.

In the United States, parents have a constitutional presumption in favor of their right to raise their children. Courts assume that parents will make good choices for their kids. When that is not true, a grandparent may seek custody, but they must first meet a high threshold. They must demonstrate that the parents have been behaving in ways inconsistent with the assumption that they will make proper choices in raising their child.

In general, only a serious mental illness would be enough to demonstrate that a parent is unfit. The mental illness would need to materially interfere with safe, effective parenting.

Showing that the parents are unfit or have failed to act in accordance with their parental responsibilities is a threshold that allows your case for custody to move forward. Once you have demonstrated this, you will still need to prove that giving custody to a non-parent is in the child’s best interests.

When determining a child’s best interests, the court will consider factors including:

  • Each party’s living arrangements
  • Each party’s ability to care for the child
  • Each party’s relationship with the child
  • Who has been the child’s primary caregiver
  • Each party’s occupation and work schedule
  • The family support networks available
  • Other factors it decides are relevant

Is it enough that the child was left in my care?

Generally, no. Although your child may have left your grandchild in your care, he or she has not lost the constitutional presumption that they should be allowed to parent their children if such arrangement was intended to be temporary. A child is not considered abandoned when they are placed in the temporary care of a reliable person, such as a grandparent. This is true even when they have left the child with you for an extended period of time.

However, if you can show that the parent has not attempted to remain involved in the child’s life, or has failed to support the child, you may be able to seek custody.

Grandparent visitation

If your child and their spouse are involved in a child custody case, you may be able to seek court-ordered visitation. This would prevent the parents from refusing to allow visits with their grandchildren.

If you are interested in order for visitation or seeking full custody over your grandchild, talk to an experienced family law attorney.