Jan142026
Guardianship Q&A Series

How do I get guardianship of my minor sibling when the parents won’t agree to it? – North Carolina

Short Answer

In North Carolina, an adult sibling usually cannot get court-ordered guardianship of a minor’s person (day-to-day care decisions) if a parent still has legal rights as the child’s “natural guardian” and has not lost those rights. When parents won’t agree, the more common path to change where the child lives is a custody case in District Court or, if there is abuse/neglect, a juvenile abuse/neglect/dependency case involving the county Department of Social Services (DSS). If the situation is urgent, emergency court options may exist, but the correct forum depends on whether a parent still has legal custody rights.

Understanding the Problem

In North Carolina, can an adult sibling ask the court to appoint them as guardian for a minor sibling when a parent refuses, and the concern is that the minor is not safe in the parent’s home after a divorce? The decision point is whether the law treats the parent as still holding the child’s legal authority (as a parent) or whether the court can place legal authority with a non-parent because the child needs protection.

Apply the Law

North Carolina uses different court tracks for different problems involving children. A guardianship of a minor is handled by the Clerk of Superior Court under Chapter 35A. However, for a guardianship of the person (or a “general guardian,” which includes both person and estate), the clerk generally may appoint a guardian only when the minor has no natural guardian. In many families, a living parent remains the child’s natural guardian even after divorce, so a contested “guardianship of the person” is often not the right tool when a parent still has rights.

When the goal is to remove a child from an unsafe home and place the child with a relative, North Carolina typically addresses that through (1) a custody action in District Court, or (2) a juvenile abuse/neglect/dependency case, which is within the District Court’s juvenile jurisdiction and usually starts with DSS screening and (if warranted) a petition.

Key Requirements

  • Correct forum: Minor guardianship is filed with the Clerk of Superior Court, but custody and juvenile protection cases are handled in District Court. Choosing the wrong forum can delay protection.
  • Natural guardian issue: A clerk may appoint a guardian of the person or a general guardian only for a minor who has no natural guardian, so a parent’s continued legal status can block a contested guardianship of the person.
  • Best-interest evidence: Even when the clerk has authority to appoint a guardian, the decision is based on the minor’s best interest and can be supported by testimony, documents, and affidavits presented at a hearing.

What the Statutes Say

Analysis

Apply the Rule to the Facts: The facts describe an adult sibling who lives away from the family home and is worried about a minor sibling living with a parent after divorce, with frequent verbal abuse and some physical incidents. If a parent still holds legal authority as the child’s natural guardian, a contested guardianship of the minor’s person through the clerk may not be available, even if the adult sibling has strong safety concerns. In that situation, the legal routes that more directly match the safety problem are a District Court custody case (seeking placement with a non-parent under the applicable standards) and/or a DSS-screened juvenile abuse/neglect/dependency process when the allegations rise to that level.

Process & Timing

  1. Who files: For a Chapter 35A minor guardianship, an interested adult (including a sibling) may file an application. Where: Clerk of Superior Court in the county where the minor resides or is domiciled. What: An application that identifies the child, the parents, the requested type of guardianship, and the reasons guardianship is sought. When: After filing, the clerk sets a hearing date and requires service on each parent and other required parties.
  2. Notice and proof: Parents must be served with the application and hearing notice under Rule 4 unless the clerk directs otherwise. At the hearing, the clerk may consider testimony, written reports, affidavits, and documents to decide whether a guardian is required and, if so, who should serve.
  3. If a parent’s rights block guardianship of the person: The next realistic step is usually a District Court case (custody) and/or contacting DSS so the safety concerns can be screened for possible juvenile court action. In urgent situations involving immediate danger, emergency court procedures may be available, but the correct filing depends on the existing custody posture and which court has jurisdiction.

Exceptions & Pitfalls

  • Guardianship vs. custody confusion: A common mistake is filing for “guardianship of the person” when a parent still qualifies as a natural guardian. That can lead to dismissal or delay while the child remains in the same home.
  • Service problems: If a parent is not properly served, the hearing may be continued or any order may be vulnerable to challenge. Chapter 35A specifically requires service on each parent who is not an applicant.
  • Overreaching requests: Asking for broad authority (a “general guardian”) without matching proof can backfire. Courts tend to focus on the narrowest order that protects the child while respecting existing parental rights and existing custody orders.
  • Not documenting safety concerns: In contested cases, details matter. Courts and agencies typically look for specific incidents, dates/timeframes, witnesses, medical or school records when available, and whether the child has immediate protection and a stable alternative placement.

For more background on the court paperwork and steps that often come up in these cases, see what paperwork and court steps are required and, if safety is the main concern, whether a report to Child Protective Services is required first.

Conclusion

In North Carolina, an adult sibling generally cannot obtain a contested guardianship of a minor’s person through the clerk if a parent still has legal authority as the child’s natural guardian. A minor guardianship application is filed with the Clerk of Superior Court and must be served on each parent, and the clerk decides based on the child’s best interest after a hearing. When parents will not agree and safety is the concern, the next step is usually to pursue the correct District Court process (custody and/or juvenile protection). File the appropriate petition with the correct court as soon as the safety concern becomes urgent.

Talk to a Guardianship Attorney

If a minor sibling may be unsafe at home and a parent will not agree to a change, the fastest and most effective option often depends on which North Carolina court has jurisdiction and what orders already exist. Our firm has experienced attorneys who can help explain the options and timelines. Call us today at (919) 341-7055.

Disclaimer: This article provides general information about North Carolina law based on the single question stated above. It is not legal advice for your specific situation and does not create an attorney-client relationship. Laws, procedures, and local practice can change and may vary by county. If you have a deadline, act promptly and speak with a licensed North Carolina attorney.

Category: Guardianship Q&A Series

Author: Pierce Law

Pierce Law Group is a North Carolina law firm focused on probate administration, real estate partition matters, and surplus funds claims across North Carolina. We know these situations often come with stress, family dynamics, and time-sensitive decisions—so we prioritize clear communication, steady guidance, and a practical plan from day one. Our goal is to make a complicated process feel manageable, while protecting what matters most to you.