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Losing Custody in a Divorce to a Family Member

It is important to state from the beginning that it is rare for both spouses to lose custody of their children to a family member. However, there are certain circumstances in which a child’s safety is endangered and a court will make the difficult decision to place a child with a family member, either during the divorce process or as part of the divorce judgment, in order to ensure the safety and well-being of the child. Learn more about this process, and your legal rights regarding the custody of your children.

Child Custody Matters in a Divorce

One of the most complex, challenging, and contested areas of a divorce is typically child custody. Disagreements regarding child custody and visitation are common, and most parents fight as hard as they can in court in order to ensure that they receive the most time possible with their child. Courts will always use a standard known as the best interest of the child, which typically involves allowing both parents to spend as much time with the child as possible through joint legal and physical custody. In most cases, courts want to foster a meaningful and strong relationship between children and both of their parents during the divorce process as well as after the divorce in a permanent custody arrangement.

Safety of the Child

Unfortunately, there are circumstances that may place a child in danger or in harm’s way. If a court discovers that a parent (or both parents) uses illegal drugs, engages in illegal activities, has abandoned the child, or abused or neglected the child in any way, the court may then strongly consider removing custody from that parent. Again, because the court will always use the standard of the “best interest of the child” to measure what custody arrangements should occur for the child, when the court discovers egregious circumstances that would endanger or harm a child, they have a responsibility to protect the child and ensure that they remain safe. In these circumstances, the court may look to grand custody of the child to a family member.

Determinations Regarding Child Custody

If a court discovers or has reason to believe that the child is in danger with either one or both parents, they will often immediately appoint a guardian ad litem to the divorce case. A guardian ad litem is a person appointed by the court whose sole interest is to make determinations on behalf of the best interest of the child. They do not work for either parent, but rather, they work directly for the child and their sole focus is to ensure that child’s well-being. They will conduct a full investigation into one or both parents, which may include interviews with the school, family and friends, and a home study. Following an investigation, the guardian ad litem will make a recommendation to the court regarding what they believe would be the best custody option for the child. Again, it is important to note that it is typically only under serious circumstances that a court would ever remove custody of a child from a parent.

Regaining CustodyWhile the removal of custody from a parent is a rare occurrence, a parent does not typically lose all rights to visitation with

their child. One of the reasons that a court will place a child with a family member is that it will facilitate the communication and relationship between the child and the parent more easily. In the future, if a parent is able to show to the court that they have resolved or remedied the behavior that was the cause of the loss of custody, a court may grant custody to the parent once again. The court will always use the best interest of the child standard to make this determination.

Contact an Experienced Family Law Attorney

If you are at all worried that you may lose custody of your child due to some facts or circumstances in your past, or you think custody will be granted to a family member, call an experienced divorce lawyer at Arnold & Smith, PLLC in Monroe, North Carolina at 704.370.2828. We can help you understand your legal rights, and help you fight for custody of your child. Contact us by phone or online today for your free consultation.