1. The “Best Interest” Standard — But Only After Parental Rights Are Addressed

In North Carolina, the “best interest of the child” is the guiding principle in custody disputes. Courts must determine the environment that best fosters a child’s physical, emotional, educational, moral, and spiritual development. However, when parents are involved, the Constitution overlays an important limitation.

A. Disputes Between Two Parents or Two Non-Parents

• When the case is between two natural parents, or between two non-parent custodians (for example, grandparents on both sides, or competing foster/relative caretakers), the trial court applies the best interest test directly.
• The judge evaluates all relevant circumstances, with no presumption favoring one side, and issues an order that “will best promote the interest and welfare of the child.” N.C. Gen. Stat. § 50-13.2(a); In re Peal, 305 N.C. 640, 290 S.E.2d 664 (1982).
• Neither party bears the burden of proof in these situations. Instead, both must present evidence, and the court weighs everything holistically. Lamond v. Mahoney, 159 N.C. App. 400, 583 S.E.2d 656 (2003).

B. Disputes Between a Parent and a Non-Parent

This is where the analysis shifts. A natural or adoptive parent has a constitutionally protected right to the care, custody, and control of their children. See Petersen v. Rogers, 337 N.C. 397, 445 S.E.2d 901 (1994); Price v. Howard, 346 N.C. 68, 484 S.E.2d 528 (1997).

• The U.S. Supreme Court in Troxel v. Granville, 530 U.S. 57 (2000), confirmed that fit parents are presumed to act in their children’s best interest, and the State cannot override that judgment simply because a judge thinks a different arrangement would be “better.”
• North Carolina’s appellate courts have repeatedly followed this principle. A judge cannot simply compare whether a grandparent’s home is more stable, wealthier, or even safer if the parent is still deemed “fit.”

C. The Threshold Question: Has the Parent Lost Their Protected Status?

Before the court may apply the best interest test in a parent v. non-parent case, the non-parent must prove that the parent:

1. Forfeited rights through unfitness or neglect.
   1. “Unfit” can mean failing to provide a safe environment, substance abuse, criminal activity, or inability to meet the child’s developmental or medical needs.
   1. Example: In Raynor v. Odom, 124 N.C. App. 724, 478 S.E.2d 655 (1996), the mother was found unfit due to repeated DWI convictions, refusal to comply with court orders, and neglect of the child’s medical needs. Custody was granted to the paternal grandmother.
2. Acted inconsistently with the parental role.
   1. This broader category covers situations where a parent voluntarily cedes custody, creates a permanent co-parenting arrangement with a third party, or abandons their parental responsibilities.In Price v. Howard (1997), the NC Supreme Court held that a mother who allowed her partner (not the biological father) to raise her child as a co-parent for years could be found to have acted “inconsistently” with her protected status.
   1. Later cases (e.g., Mason v. Dwinnell, 190 N.C. App. 209 (2008)) confirmed that when a parent intentionally fosters a parent-like relationship between the child and another adult, that can waive constitutional preference.
3. Standard of Proof: The non-parent must prove unfitness or inconsistent conduct by clear, cogent, and convincing evidence. Adams v. Tessener, 354 N.C. 57, 550 S.E.2d 499 (2001).

D. What Happens if the Parent Retains Protection?

• If the court finds the parent remains fit and has not acted inconsistently with parental rights, the analysis ends.
• The case must be dismissed, regardless of whether living with a grandparent, stepparent, or other caretaker might be “better” for the child. See Petersen v. Rogers (1994).

E. Practical Examples

• Grandparents raising a child for several years with little involvement by a parent may have a strong argument for “inconsistent conduct” (Grindstaff v. Byers, 152 N.C. App. 288 (2002)).
• Stepparents who were allowed by the parent to act in a parent-like role may have standing (Seyboth v. Seyboth, 147 N.C. App. 63 (2001)).
• Casual caregivers or recent acquaintances (neighbors, short-term babysitters) almost never succeed; courts treat them as “strangers” with no standing (Tilley v. Diamond, 184 N.C. App. 758 (2007) (unpublished)).

👉 In short: best interest of the child only applies after parental rights are addressed. The constitutional preference for parents is strong, but it can be waived. Once waived, the non-parent stands on equal footing, and the judge decides custody or visitation under the ordinary best-interest analysis.

2. Standing — Who Can Even File?

In custody law, standing refers to a person’s legal ability to bring a case. Without standing, the court has no subject matter jurisdiction, and any resulting order is void — even if everyone agreed to it at the time. In North Carolina, standing is controlled by both statute and constitutional principles.

A. Statutory Language: G.S. 50-13.1

North Carolina’s custody statute is very broad on its face. It provides that:

“Any parent, relative, or other person, agency, organization, or institution claiming the right to custody of a minor child may institute an action or proceeding for the custody of such child.”

Read literally, this would suggest that anyone — even a stranger — could file. But the appellate courts have sharply limited the statute’s reach to protect parents’ constitutional rights.

B. Relatives

• Grandparents, aunts, uncles, and siblings typically have standing, but only if they allege that the parent has lost their constitutional protection (unfitness or inconsistent conduct).
• Example: In Rodriguez v. Rodriguez, 211 N.C. App. 267, 710 S.E.2d 235 (2011), the paternal grandmother had standing because she alleged she was biologically related and that the parents had acted inconsistently with their rights.
• Example: In Yurek v. Shaffer, 198 N.C. App. 67, 678 S.E.2d 738 (2009), a sister and brother-in-law of the child’s father were found to have standing as “relatives,” even though their personal relationship with the child was limited.

👉 Relatives benefit from the statute’s plain language, but still must allege facts sufficient to overcome parental preference.

C. Non-Relatives With Parent-Like Bonds

Courts recognize standing for non-relatives only when they can show a substantial, parent-like relationship with the child.

• Ellison v. Ramos, 130 N.C. App. 389, 502 S.E.2d 891 (1998): Standing exists if the third party is “not a stranger” to the child; the plaintiff in that case had raised the child for years and was the only mother the child had known.
• Mason v. Dwinnell, 190 N.C. App. 209, 660 S.E.2d 58 (2008): A former same-sex partner had standing because she had acted jointly with the biological mother to raise the child in a family unit, with an express parenting agreement.
• Boseman v. Jarrell, 364 N.C. 537, 704 S.E.2d 494 (2010): Confirmed that a parent who intentionally fosters a co-parenting relationship with another adult can give that person standing.

By contrast, a mere friendship, babysitting role, or financial help does not create standing.

D. No Standing: Foster Parents, Short-Term Caretakers, or Strangers

• Tilley v. Diamond, 184 N.C. App. 758, 646 S.E.2d 865 (2007) (unpublished): Plaintiffs had known the child only a few days (after the funeral of the child’s mother) when they filed for custody. The order granting them custody was void.
• Myers v. Baldwin, 205 N.C. App. 696, 698 S.E.2d 108 (2010): A couple who cared for a child for only two months before filing lacked standing. Even though they had bonded with the child, the relationship was too brief.
• Bohannan v. McManaway, 208 N.C. App. 572, 705 S.E.2d 1 (2011): Allegations that the child had lived with non-parents for six months and “bonded” with them were insufficient to establish standing.

👉 Foster parents and others caring for children under DSS or adoption statutes are also excluded; legal custody rests with DSS or the adoptive agency, not the foster parent (Oxendine v. Catawba County DSS, 303 N.C. 699, 281 S.E.2d 370 (1981)).

E. Timing Matters

Standing is measured at the moment the complaint is filed. Later developments cannot cure a lack of standing.

• Example: If a neighbor files for custody before ever forming a meaningful bond with the child, the case is void — even if the neighbor later cares for the child during litigation. Perdue v. Fuqua, 195 N.C. App. 583, 673 S.E.2d 145 (2009).

F. Jurisdictional Consequences

Because standing is jurisdictional, courts treat the absence of standing as fatal:

• Orders entered without standing are void ab initio — not just voidable. They can be challenged years later in contempt or modification proceedings (Wellons v. White, 229 N.C. App. 164, 748 S.E.2d 709 (2013)).
• Even consent orders between parents and non-parents are void if the non-parent had no standing at the time (Tilley v. Diamond; Myers v. Baldwin).

G. Practical Takeaways

• Relatives have a lower hurdle but must still allege parental unfitness or inconsistent conduct.
• Non-relatives must show a deep, parent-child relationship — not casual contact.
• Short-term caretakers and strangers cannot file.
• Courts scrutinize standing at the outset. If it is lacking, the case must be dismissed, no matter how sympathetic the facts.

⚖️ In sum: Standing ensures that custody cases are limited to parents and those with a truly substantial, legally cognizable relationship with the child. It is the gatekeeper before courts can even consider the “best interest” analysis.

3. Grandparents’ Special Role

North Carolina courts recognize that grandparents often play a crucial role in children’s lives, especially in times of family disruption. But unlike parents, grandparents do not have an automatic right to custody or visitation. Their ability to intervene is limited by both constitutional principles and specific statutes.

A. Custody by Grandparents

Grandparents may seek custody of a grandchild under G.S. 50-13.1(a), but they must overcome the parental preference rule.

• This means they must prove that the parents are unfit, neglectful, or have acted inconsistently with their constitutionally protected status.
• Example: In Owenby v. Young, 357 N.C. 142, 579 S.E.2d 264 (2003), after the mother’s death, the grandmother sought custody. The NC Supreme Court reaffirmed that the surviving parent enjoys the constitutional preference unless unfitness or inconsistent conduct is proven.
• Example: Perdue v. Fuqua, 195 N.C. App. 583, 673 S.E.2d 145 (2009) — allegations that parents had left children in the grandmother’s care for extended periods and failed to show parenting ability were sufficient to give her standing to seek custody.

👉 In short: grandparents stand in the same shoes as any third party seeking custody — they must prove the parent has lost constitutional protection.

B. Visitation by Grandparents

North Carolina has enacted three narrow statutes that allow grandparents to pursue visitation rights:

1. G.S. 50-13.2(b1): Allows grandparents to request visitation during an ongoing custody case between the parents. They cannot file independently; they must intervene in the parents’ litigation.
   1. Smith v. Barbour, 195 N.C. App. 244 (2009): grandparents could intervene because custody between the parents was still being litigated.
   1. Moore v. Moore, 89 N.C. App. 351 (1988): clarified that this provision doesn’t allow a standalone grandparent claim; it must attach to a parent custody case.
2. G.S. 50-13.2A: Allows grandparents to seek visitation when the child has been adopted by a stepparent or relative, provided a substantial relationship exists.
   1. Hill v. Newman, 131 N.C. App. 793, 509 S.E.2d 226 (1998): visitation denied when the grandmother could not cooperate with the adoptive parents, even though she had a substantial relationship with the children.
3. G.S. 50-13.5(j): Allows grandparents to file a motion in the cause in an existing custody case, but only upon a substantial change in circumstances since the prior order.
   1. Eakett v. Eakett, 157 N.C. App. 550, 579 S.E.2d 486 (2003): grandparents could not use this statute after more than a year had passed with no custody litigation — the family was deemed “intact.”
   1. Sloan v. Sloan, 164 N.C. App. 190, 595 S.E.2d 228 (2004): grandparents retained rights after being granted visitation in the original custody order and later sought modification.

C. Constitutional Limits: The “Intact Family Rule”

Even with these statutes, grandparents face strict constitutional limits.

• The NC Supreme Court in McIntyre v. McIntyre, 341 N.C. 629, 461 S.E.2d 745 (1995), held that grandparents may not intrude on an intact family — meaning two fit parents raising a child together.
• The Court of Appeals has extended this to situations where only one parent survives or where custody litigation has concluded:
  • Eakett v. Eakett (2003): grandparents could not intervene once the parents’ custody dispute had ended.
  • McDuffie v. Mitchell, 155 N.C. App. 587, 573 S.E.2d 606 (2002): after the mother’s death, the surviving father retained parental preference, and the grandmother lacked standing.

👉 Practically, this means that if a child lives with two married parents, or even with one surviving fit parent, grandparents cannot sue for visitation.

D. Recent Constitutional Challenges

Grandparent visitation statutes are constitutional only if applied narrowly. Courts must give “special weight” to a fit parent’s decisions.

• Troxel v. Granville, 530 U.S. 57 (2000): U.S. Supreme Court struck down a Washington visitation law for being too broad, affirming parents’ rights.
• Alexander v. Alexander (N.C. Ct. App. 2021): NC Court of Appeals held that granting grandparents extensive visitation (every other weekend plus holidays) violated the mother’s constitutional rights. Orders must defer to the parent’s judgment and not undermine the parent–child bond.

E. Practical Summary

• Custody: Grandparents may obtain custody, but only if parents have lost constitutional protection.
• Visitation: Grandparents must fit within one of the three statutes, and only if the family is not “intact.”
• Limitations: Courts strictly enforce constitutional rights. Even when statutes apply, grandparents must show why their involvement does not improperly override a fit parent’s decisions.

⚖️ Bottom line: North Carolina respects the vital role of grandparents but prioritizes the constitutional rights of parents. Grandparents can succeed only in narrow circumstances, usually when the family has already fractured.

4. Consent Custody Orders With Non-Parents

Sometimes, parents voluntarily agree to place their child in the custody of a grandparent or other trusted adult by signing a consent custody order. These arrangements often arise in times of crisis — for example, when a parent is struggling with substance abuse, housing instability, or military deployment. While such orders can provide immediate stability for the child, they carry significant long-term consequences.

A. General Validity of Consent Custody Orders

• North Carolina courts have held that consent custody orders are generally valid, even if the order does not contain explicit findings that the parent waived their constitutional rights.
• The reasoning: by signing a consent order, the parent is voluntarily waiving their superior constitutional status.
• Bivens v. Cottle, 120 N.C. App. 467, 462 S.E.2d 829 (1995): a mother signed a custody order granting the grandmother custody, even though the trial court found the mother was a “fit and proper person.” Later, the court held the mother could not reclaim custody without showing a substantial change of circumstances.

B. Consequences for Parents

Once a consent custody order is entered:

• A parent cannot later demand the return of custody simply by reasserting their constitutional rights.
• To regain custody, the parent must meet the modification standard in G.S. 50-13.7:
  • Prove there has been a substantial change of circumstances since the entry of the original order; and
  • Show that modification would serve the best interests of the child.
• Speaks v. Fanek, 122 N.C. App. 389, 470 S.E.2d 82 (1996): the Court of Appeals held that once custody has been awarded to a non-parent (even by consent), the parent loses the constitutional presumption and must prove a substantial change to modify.

👉 This means consent custody orders can permanently shift the legal balance: parents move from having a constitutional presumption in their favor to being on equal footing with the non-parent.

C. The Standing Requirement: A Jurisdictional Hurdle

Consent orders are only valid if the non-parent had standing at the time the action was filed.

• If the non-parent was a “stranger” to the child, the court lacked jurisdiction to enter the order, and the order is void.
• Wellons v. White, 229 N.C. App. 164, 748 S.E.2d 709 (2013): the Court of Appeals held that allegations of parental waiver are necessary to establish jurisdiction. Without them, the order is void, even if entered by consent.
• Similarly, in Tilley v. Diamond (2007) (unpublished), a custody order giving a child to neighbors after the mother’s funeral was later declared void because the neighbors lacked standing when they filed.

D. Temporary vs. Permanent Intent

The parent’s intent at the time of signing can be significant in later litigation.

• If the arrangement was clearly intended to be temporary, courts may be reluctant to find permanent waiver.
• Weideman v. Shelton, 787 S.E.2d 412 (N.C. App. 2016): a mother signed a consent custody order giving her own mother custody but testified it was meant to be temporary until she could resume her parental role. The Court of Appeals ruled that this did not constitute clear and convincing evidence of waiver against other third parties.

E. Practical Implications for Families

• Parents: Before signing, understand that a consent custody order can permanently alter your legal rights. Regaining custody later will be much harder.
• Grandparents/Relatives: A consent order provides legal security but may still be challenged if standing was lacking or if circumstances change.
• Attorneys: Careful drafting is critical. Orders should clarify whether the arrangement is intended to be temporary or permanent and should establish the non-parent’s standing clearly on the record.

⚖️ Bottom line: Consent custody orders with non-parents are enforceable, but they can have long-lasting consequences. They waive the parent’s constitutional preference, shift the burden for future modification, and are only valid if the non-parent had proper standing when the case was filed.

5. Modification Standards

Once a custody order — whether between two parents or involving a non-parent — has been entered, the law limits when it may be changed. Courts want to preserve stability for children, so they impose a strict standard:

A. Statutory Authority

• Custody modification is governed by G.S. 50-13.7(a), which provides that a custody order may be modified or vacated “at any time, upon motion in the cause and a showing of changed circumstances.”
• But case law clarifies that not just any change is enough — the change must be substantial and must affect the welfare of the child.

B. The Two-Part Test

To succeed on a motion to modify custody, the moving party must prove:

1. Substantial Change in Circumstances since the prior order was entered; and
2. Impact on the Child’s Welfare.
3. Shipman v. Shipman, 357 N.C. 471, 586 S.E.2d 250 (2003): The NC Supreme Court held that even when circumstances change, the court must link those changes to their effect on the child’s well-being.
4. Pulliam v. Smith, 348 N.C. 616, 501 S.E.2d 898 (1998): emphasized that findings must connect changes in a parent’s life (remarriage, relocation, employment, etc.) to the child’s best interests.

👉 Importantly, courts require specific findings of fact. Orders that list changes without explaining how they affect the child’s welfare are reversible on appeal.

C. Examples of Substantial Change

• Self-evident impact: In Shipman, the mother had repeatedly violated visitation orders, engaged in deceit, and moved the child frequently. The cumulative impact on the child’s stability made the effect on welfare “self-evident,” even without explicit findings.
• Not self-evident: In Henderson v. Wittig (N.C. App. 2021), parental disagreements about schooling, communication, and visitation logistics were not enough; the trial court failed to show how those disputes actually harmed the child.
• Lifestyle improvements: Courts have rejected modifications based only on a parent’s improved circumstances (better job, remarriage, or housing) unless there is proof that the change benefits the child. See Brewer v. Brewer, 139 N.C. App. 222, 533 S.E.2d 541 (2000).
• Domestic violence: Acts of violence can constitute a substantial change if they affect child safety. Hall v. Hall, 188 N.C. App. 527, 655 S.E.2d 901 (2008).

D. Parents vs. Non-Parents at the Modification Stage

• If custody was originally awarded to a non-parent, the parental preference rule does not revive at modification.
• This means that a parent cannot reclaim custody merely by showing they are now fit. Instead, they must meet the same substantial change + best interest test as the non-parent.
• Bivens v. Cottle, 120 N.C. App. 467 (1995): mother could not regain custody from grandmother without proving changed circumstances, even though the trial court originally found her to be a “fit and proper person.”
• Speaks v. Fanek, 122 N.C. App. 389 (1996): reaffirmed that once custody has been judicially determined in favor of a non-parent, the parent loses the constitutional presumption.

E. Temporary vs. Permanent Orders

• Temporary custody orders may be modified more easily — courts can revisit them based solely on the best interest of the child.
• Permanent custody orders require the two-part test of substantial change + effect on welfare.

F. Practical Takeaways

• Parents: If you consented to a custody order giving rights to a grandparent or other third party, you cannot later undo it by reasserting constitutional rights. You must prove a substantial change in circumstances affecting your child.
• Non-parents: Once you obtain custody, you are on equal footing with parents at the modification stage. Parents no longer enjoy the presumption in their favor.
• Courts: Must make detailed findings connecting changed circumstances to child welfare. Failure to do so often results in reversal on appeal.

⚖️ Bottom line: Custody orders can be modified, but only when there is a substantial, child-focused reason to do so. The law protects children from instability and ensures that custody is changed only when circumstances truly demand it.

6. Practical Realities for Families

A. For Parents

• You begin with the strongest hand. The law presumes that fit parents have the right to raise their children free from outside interference (Petersen v. Rogers). That means no grandparent, stepparent, or other adult can win custody or visitation against you unless they first prove you are unfit or that you’ve acted inconsistently with your parental role (Price v. Howard).
• How parents lose the presumption:
  • Long absences or leaving the child with someone else for extended periods without clarifying it’s temporary.
  • Allowing another adult (romantic partner, grandparent, or family friend) to function as a “co-parent” without limits.
  • Failing to meet your child’s medical, educational, or safety needs (Raynor v. Odom).
• Consent orders carry lasting consequences. If you sign over custody to a grandparent in a consent order, you won’t be able to later demand the child back on constitutional grounds. You will have to show a substantial change in circumstances and prove best interests, just like any other litigant (Bivens v. Cottle; Speaks v. Fanek).
• Takeaway: Think carefully before signing away custody or allowing someone else to act as a permanent parent. Once your constitutional shield is weakened, it cannot be easily restored.

B. For Grandparents

• Timing is critical.
  • You can only pursue visitation under the statutes if there’s an active custody case between the parents (McIntyre v. McIntyre).
  • You can seek custody under G.S. 50-13.1, but you must allege parental unfitness or waiver.
• “Intact family” rule: If the child lives with two married parents or even a surviving fit parent, you typically cannot intervene (Eakett v. Eakett).
• Visitation rights are narrow and deferential. Courts must give “special weight” to a fit parent’s decision about grandparent visitation (Troxel v. Granville; Alexander v. Alexander (N.C. App. 2021)). Even if visitation is granted, schedules cannot be so extensive that they interfere with the parent–child bond.
• Preserve your role early. If you already have significant involvement in the child’s life, intervene during an active custody case. Once parental rights are terminated or years of stability have passed, your chances diminish greatly.
• Takeaway: The law protects parents first. As a grandparent, your best opportunity is during family disruption (divorce, separation, or when custody is already in dispute).

C. For Other Third Parties (Stepparents, Partners, Family Friends)

• Standing is heavily scrutinized. You must show you are more than a “well-meaning adult.” Courts want proof of a parent-like relationship, not just occasional babysitting or financial help (Ellison v. Ramos).
• What works:
  • Living with the child for years as part of a family unit (Mason v. Dwinnell; Boseman v. Jarrell).
  • Sharing day-to-day responsibilities: school drop-offs, doctor visits, discipline, financial support, decision-making.
• What fails:
  • Short-term caretaking (Myers v. Baldwin — only two months of care was insufficient).
  • “Bonding” alone without parental intent (Bohannan v. McManaway).
  • Being a neighbor, friend, or extended acquaintance without a substantial role (Tilley v. Diamond).
• Takeaway: Document everything. If you intend to seek custody or visitation, you’ll need clear evidence that you functioned as a parent with the legal parent’s support and intent.

D. The Common Thread

Whether you are a parent, grandparent, or other caregiver, the courts ask the same questions:

1. Has the parent lost or waived their constitutionally protected role?
2. Does the third party have standing to bring the case?
3. If so, what custody or visitation arrangement is in the child’s best interest?

⚖️ Bottom line: Parents start with strong constitutional protection, but it can be lost. Grandparents and other third parties have narrow windows to step in — usually during family disruption — and must meet demanding legal standards. For families, this means planning, timing, and legal guidance are critical to protect relationships with children.

Conclusion

Third-party custody law in North Carolina strikes a careful balance. On the one hand, parents hold a constitutionally protected right to raise their children without interference. On the other hand, the courts recognize that grandparents, stepparents, and other caregivers sometimes step in and provide critical stability for a child.

The system works in layers:

• Parents come first. Their rights are presumed superior unless clearly waived or lost.
• Standing is the gatekeeper. Only relatives or adults with a proven parent-like bond may even bring a case.
• Best interests guide the final decision. But this test applies only after parental rights have been addressed.

For families, the practical lesson is clear:

• Parents should understand that prolonged absence, consent custody orders, or allowing someone else to act as a co-parent can permanently alter their rights.
• Grandparents and other third parties must act promptly, prove their legal footing, and be prepared for courts to scrutinize their role closely.
• Everyone should remember that custody law is designed to protect children from instability—modifications are allowed only when circumstances change in a way that truly affects the child’s welfare.

⚖️ Bottom line: North Carolina custody law prioritizes children’s well-being, but it does so within the constitutional framework that favors parents. For anyone involved in these complex cases, timing, evidence, and careful legal strategy make all the difference.

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Adkins Law, PLLC – Serving Huntersville and the Lake Norman Community

At Adkins Law, PLLC, we know that few issues are more important—or more stressful—than child custody. Based in Huntersville and the Lake Norman area, our firm focuses on family law, estate planning, and mediation. We provide clear advice, practical strategies, and strong advocacy to protect both your rights and your child’s best interests. Whether you are a parent seeking custody, a grandparent exploring visitation, or a family member caught in a difficult dispute, our team is here to guide you through the process with knowledge and compassion.

Click here to contact Adkins Law, PLLC in order to speak with an experienced family law attorney in Huntersville, NC regarding your child custody matter.