When most of us think of child support, we think of one parent paying support to the other for the children of their marriage following a divorce. And, in most situations, this is in fact the case. After all, parents have a legal duty to financially support their children, and the majority of child support cases focus on making sure that duty is followed and that the children are supported in a way that meets their needs and provides for their best interests.
In certain special and somewhat unusual circumstances, however, grandparents may also be ordered to pay child support for their grandchildren. While this is generally not the norm, and only happens when very specific conditions are met, it can be helpful to understand those circumstances, particularly if you believe either that your children may be entitled to support from a grandparent, or that as a grandparent, you are owed support by a non-custodial parent.
When are Grandparents Responsible for Paying Child Support on Behalf of Their Grandchildren?
Certainly, common law generally requires that the parents of the child, and not the grandparents, bear primary responsibility for the care, nurture, and support of that child. This is understandable, and in keeping with the legal preference for the parent’s paramount right to provide for the care, support, and nurturing of their children.
However, North Carolina is in the minority of states in the country to have enacted a law regarding grandparent duties which is consistent with the common law principle of “in loco parentis”. “In loco parentis” is Latin for “in the place of a parent”, and generally, this term is applied to a situation in which a grandparent has taken on a parenting role and assumed parental duties with respect to a minor child, even if they have not actually adopted the child.
More specifically, North Carolina General Statute §50-13.4 sets forth the circumstances that must be demonstrated in order for a grandparent to be found to be responsible for child support, stating:
“In the absence of pleading and proof that the circumstances otherwise warrant, parents of a minor, unemancipated child who is the custodial or noncustodial parent of a child shall share this primary liability for their grandchild’s support with the minor parent, the court determining the proper share, until the minor parent reaches the age of 18 or becomes emancipated. If both the parents of the child requiring support were unemancipated minors at the time of the child’s conception, the parents of both minor parents share primary liability for their grandchild’s support until both minor parents reach the age of 18 or become emancipated. If only one parent of the child requiring support was an unemancipated minor at the time of the child’s conception, the parents of both parents are liable for any arrearages in child support owed by the adult or emancipated parent until the other parent reaches the age of 18 or becomes emancipated.”
That statute therefore essentially provides that a grandparent may be required to pay support based on:
- The “relative ability” of all other parties to provide support; and
- The inability of one or more of the parties to provide support; or
- The “needs and estate of the child”.
Essentially, this means that a court will look at the totality of the circumstances, including the needs of the child, the role the parties have played in the child’s life, and the needs of the child, including any other support of any kind that the child may be receiving when making its determination. The statute also specifically provides that if the child is under 18 and has a child themselves, the grandparent may be responsible for helping to support the child until the minor parent reaches 18.
It should be noted that in cases where the grandparents are found to be responsible for paying child support on behalf of their grandchildren, the usual state child support guidelines will apply.
The Right of Grandparents to Collect Child Support for Children in their Care and Custody
As stated above, it is the biological parents of the child(ren) who are primarily responsible for providing support to those children. This remains the case even if the children reside with non-parents, such as grandparents, who have custody of those children. As a result, grandparents have been allowed to seek and receive child support for the grandchildren in their custody. In fact, certain jurisdictions have even held that the failure of a biological parent to pay child support to a grandparent while the parent’s minor child is in the grandparent’s custody might constitute abandonment for the purpose of termination of parental rights. As in any child support case, the grandparents must present evidence of the parent’s incomes and ability to pay support when requesting that the court award that support.
As is the case when grandparents are required to pay child support, when they receive child support, the normal North Carolina child support guidelines apply in determining the nature and amount of that support. In North Carolina, child support is typically made as a monthly payment from the responsible party to the receiving part – usually from the noncustodial parent to the custodial parent (or in this case the grandparent) – to provide for the reasonable needs of the children at issue. Typically, the obligation continues until the children reach the age of 18 or graduate from high school, whichever is later.
In order to help reach a determination of what might be a reasonable amount for child support, North Carolina courts look to the income (including any investment, retirement accounts and other accumulated wealth) of parents, in order to make these calculations. The calculations are based on statutory guidelines set forth by the North Carolina Child Support Guidelines, which require inputting numbers into a specific formula for the purpose of determining the amount ultimately owed.
There are various worksheets that are used to calculate the amount of support owed, depending upon particular circumstances:
- Worksheet A: This worksheet is used when one parent has custody of the children, and the other parent’s visitation totals less than 123 nights per year;
- Worksheet B: This worksheet is used when the parents have joint custody and the non-custodial parent’s visitation totals more than 123 nights per year;
- Worksheet C: This worksheet is used in split custody situations in which each parent has sole custody of at least one child from the marriage.
These worksheets can be very useful in determining an estimate of how much monthly child support payments might be owed in your particular circumstances. In the case of grandparents seeking support for minor grandchildren in their custody, courts will use the formulas and worksheets in the same manner as if one parent were paying child support to another. Certainly, depending upon circumstances, deviation from these guidelines may be merited, and an attorney with a thorough understanding of the complexities of family law will best be able to provide advice with respect to particular circumstances.
Should I Contact an Attorney?
If you are a grandparent with custody of your minor grandchildren who believes you may be entitled to support under the law, or if you are a parent who believes that your child’s grandparents may have a legal obligation to pay child support, it is always a wise decision to contact an attorney about your circumstances. A knowledgeable and experienced family law attorney will be able to listen to your concerns, and advise you of what rights you may have under the law.
At the Law Office of Dustin S. McCrary, family law is our passion. We believe that each and every client deserves an advocate who will fight tirelessly and effectively on their behalf. We understand the law, and we specialize in helping our clients through family law situations of all kinds. We are proud to serve our community, and would be honored to have the opportunity to serve you. Contact us today.