Do grandparents have a right to parenting time with their grandchildren?
This is a question frequently asked but not frequently spoken about in family law. Grandparents many times are left in the dark about what they can do to stop from being shut out of their grandchild’s life during a separation or divorce of one of their children. Here are some guidelines on this issue.
In general, parents have a fundamental right to raise and nurture their children. However, grandparents do have the right to assert a right to parenting time even over the objections of the biological parents…but under very limited circumstances. Let’s explore these circumstances.
Can a Grandparent seek parenting time with grandchildren through the Court?
In North Carolina, no statutory provisions expressly grant grandparents automatic parenting time to a grandchild. When a minor child is living with both parents in an intact family unit, grandparents do not have the right to interfere and seek parenting time with a grandchild.
Rather, grandparents can only request parenting time with a grandchild by attempting to intervene via an on-going child custody action filed previously by either parent. If there are no on-going legal proceedings before the Court, grandparents have no way to file for parenting time. Further, if the grandparents do not file their motion to intervene before the child custody dispute is resolved, then the door has closed on their ability to intervene and request parenting time with the grandchild.
If a grandparent files a motion to intervene in an on-going custody matter and a request for parenting time for visitation in a timely manner, the Court looks for “a substantial relationship” between the grandparent and the grandchild. If a substantial relationship exists based on the evidence presented, then the Court moves on to consider the best interest and welfare of the child. For example: the grandparents may present evidence that shows that, without the Court’s intervention, they will never be able to see their grandchild which would negatively affect the child. When looking at the child custody action as a whole and deciding the parenting time for both parents and any intervened grandparents, the Court will consider the child’s health, education, housing situation, and various other factors that affect the child’s safety and general welfare. The amount of parenting time awarded to grandparents varies from case to case.
It should be noted that parenting time does not necessarily have to be “in person.” Grandparents may ask for parenting time via “electronic communication” such as telephone calls, emails, text messaging, and Zoom, Skype or Facetime.
What if the child’s safety is at issue?
In rare circumstances, a grandparent may be seeking parenting time with the grandchild because the parents have abandoned the grandchild or are otherwise unfit to parent the grandchild. In these rare circumstances, a grandparent can initiate a child custody action as a third party if there are concerns that both parents are “unfit” or have other abdicated their constitutional right to parent.
North Carolina courts presume that children should be cared for by their natural or adoptive parents, as it is generally in the child’s best interest. But what if its not? What if the parents have left the child on the doorstep of the local fire station? What if the parents are putting the child in significant harm’s way, such as exposure to extreme drug use or physical violence?
A grandparent can file for child custody of their grandchild if they can show the Court that the parents have abused, neglected, or abandoned their children. However, finding a parent unfit or has abdicated their constitutionally protected right to parent is a notably high bar to overcome. Differences of opinions or parenting habits between a parent and a grandparent is not enough to overcome this bar. Simply put: a “bad” parent by one person’s standards does not necessarily equate to abuse, neglect, or abandonment.
Whether a grandparent is pursuing regular afternoon visits or phone calls with their grandchild in the midst of an ongoing custody battle between parents or if a grandparent is concerned for the safety of a child due to abuse, neglect or abandonment, an experienced family law attorney can assist a grandparent figure out the next step.
If you are a grandparent or know a grandparent seeking help on their legal rights concerning their grandchild, our Modern Legal Team is here to help.
Please note: these educational materials are based on North Carolina law where my legal practice is based. While the insights may have wide applicability, readers should consult with an attorney regarding the specific laws in their state or country.
Written by: Modern Legal
