What Makes a Parent Unfit

Posted by Kathleen Murphy | Mar 21, 2019

So you want to sue for custody of a grandchild?

Are you a grandparent, or an aunt or just an unrelated person who has a substantial relationship with a child?

The person suing for a custody of a child who is not a parent must show that a parent is unfit or has acted inconsistent with his constitutionally protected status as a parent.  Why do you have to prove this?  A parent is presumed to be the best person to have custody of a child

In layman's terms, a parent has been deemed unfit if the child is placed in a dangerous situation or is addicted to drugs and alcohol and is unable to provide food, shelter, stability and meet the basic needs of a child.

A parent has been deemed to have acted inconsistent with their constitutionally protected status  if a judge finds that the legal parent has voluntarily relinquished cusody of a child to a third party for a period of time without making it clear that the arrangement as temporary. 

In some instances, a parent has been found to waive his status by encouraging and building a relationship between the child and the third party.   Think step-parents or same sex partners.  If the court finds that the parent voluntarily chose to create a family unit and give the other persona a significant level of parental and decision making responsibility.

The court examines the intent and conduct of the legal parent, rather than that of the other person, “during the formation and pendency of the parent-child relationship.” That is, the judge must consider evidence of the legal parent's intent and conduct during the marriage, rather than after the separation, with regard to a stepparent's role in the child's life.

Here is the law:

  • N.C. General Statute 50-13.1(a) states that any person may “institute an action or proceeding for custody” of a child under certain circumstances.  Under this statute, any person may sue for custody (not visitation) on grounds that the parents are unfit or have “acted inconsistently” with their constitutionally protected status as parents.

About the Author

Kathleen Murphy

Kathleen Murphy is graduate of North Carolina State University with a B.A. in Political Science, 1985. She attended Campbell University Law School and received her Juris Doctorate, 1988. Ms. Murphy has been a family law attorney for over 30 years and has limited her practice solely to family law since 1988. On October 1, 2023, Kathleen accepted a position as a senior attorney with Triangle Divorce Lawyers and she can be reached at [email protected]. Ms. Murphy is a member of the North Carolina State Bar, North Carolina Bar Association, NCBA Family Law Section Member, is a trained Family Financial Mediator and a trained Child's Advocate. Ms. Murphy is married to a City of Raleigh Firefighter and has four children, three daughters and a son. Ms. Murphy is a contributor to an International podcast. Crime Stories with Nancy Grace is broadcasted daily and you can hear Ms. Murphy's comments on cases involving victims of family crimes and the impact of family court.