What are the legal rights of Grandparents seeking visitation or child custody of Grandchildren?
Grandparents play a special role in the family, often forming special bonds with their grandchildren. Yet, while grandparents may spend a lot of time around their grandchildren, they are not automatically entitled to custody or visitation based on their familial relationship to the grandchildren. Because of this legal reality, grandparents may wonder how to protect their ability to be in their grandchildren’s lives if the parents separate, pass away, or can no longer care for the children.
North Carolina law allows grandparents to assert a claim for physical or legal custody, at any time, if the grandparents can prove that the child’s parents have waived or acted in a manner contrary to their constitutional right to child custody. To demonstrate, the grandparents must prove that the parents are unfit or acting inconsistent with their parental status to the detriment of the children. This form of analysis is extremely unique for each and every family. For example, in Wellons v. White, the North Carolina Court of Appeals found that the grandparents could file for custody after they claimed that the father had not visited the child alone for a long period of time and could not provide the child with a stable home environment. In contrast, the North Carolina Court of Appeals in Perdue v. Fuqua denied the grandmother’s motion for custody, finding that the father did not waive his protected parental status by working a job with extended hours, frequently asking his teenage girlfriend to babysit the child, and placing the child primarily in the custody of the grandmother for four months. Judges treat child custody hearings extremely seriously, so it is crucial to be prepared with the best strategy and arguments possible.
Several statutory provisions allow grandparents to sue for visitation rights. To start, N.C.G.S. Section 50-13.2(b1) provides that grandparents may intervene to request visitation rights once the parents have initiated a custody action. The grandparents have the burden of showing the Court how their visitation would benefit the child. After the parties present their evidence, the Court will evaluate the grandparents’ petition and decide whether awarding the grandparents visitation is appropriate and would be in the best interests of the child. Grandparents may also seek to modify a final custody order to request visitation with the grandchildren, pursuant to N.C.G.S. Section 50-13.5(j), so long as a substantial change in circumstances is demonstrated. However, suppose the child is living with an “intact” family, meaning that the child is living with a parent and there is no custody dispute at the time; in that case, grandparents are prohibited from seeking visitation under this statute.
Typically, if the biological parents consented to the adoption of their child, the grandparents lose the right to request visitation. However, under N.C.G.S. Section 50-13.2A, if a grandchild has been adopted by a stepparent or a relative, a biological grandparent may still ask the Court for visitation rights when they have a substantial relationship with their grandchild. Although there is no exact definition, a grandparent-grandchild relationship may be considered substantial when it is shown that the grandparent helped to raise the grandchild.
Ultimately, it is within the trial court’s discretion to determine whether it is appropriate to grant Grandparents any parenting time with grandchildren.
No matter how close your relationship with your grandchildren is, establishing custody or visitation as a non-parent is complicated. An experienced family law attorney can help you navigate the process and prepare for Court.
If you or someone you know has questions regarding grandparent rights in child custody and visitation actions, our team at Modern Legal is here to help.
Please note: these educational materials are based on North Carolina law where Theresa’s 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: Theresa E. Viera
