In North Carolina, Grandparents may find it more difficult than other states to win custody or visitation rights for their grandchildren. There are a few statutes that are responsible for this.
The NC statute reads, "An order for custody of a minor child may provide visitation rights for any grandparent of the child as the court, in its discretion, deems appropriate." At first glance, this may seem cut-and-dry, but actually presents a problem, as "custody" encompasses both custody and visitation, which can be interpreted as temporary custody. As grandparents in NC cannot file an independent action for visitation, some grandparents seek visitation rights as a part of a grandchild's custody case even if they are not being denied contact. Due to the way the law is written, if grandparents don't join the original custody suit for a grandchild and later is denied contact, that grandparent has no recourse unless the case ends up back in court.
NC Laws Pertaining to Child Custody or Visitation
N.C. Gen. Stat. §50-13.1(a) states that: “Any parent, relative, or other person, agency, organization or institution claiming the right to custody of a minor child may institute an action or proceeding for the custody of such child, as hereinafter provided.”
N.C. Gen. Stat. §50-13.2(b1) reads: “An order for custody of a minor child may provide visitation rights for any grandparent of the child as the court, in its discretion, deems appropriate. As used in this subsection, “grandparent” includes a biological grandparent of a child adopted by a stepparent or a relative of the child where a substantial relationship exists between the grandparent and the child….”
N.C. Gen. Stat. §50-13.2A states that: “A biological grandparent may institute an action or proceeding for visitation rights with a child adopted by a stepparent or a relative of the child where a substantial relationship exists between the grandparent and the child. Under no circumstances shall a biological grandparent of a child adopted by adoptive parents, neither of whom is related to the child and where parental rights of both biological parents have been terminated, be entitled to visitation rights. A court may award visitation rights if it determines that visitation is in the best interest of the child…”
N.C. Gen. Stat. §50-13.5(j) reads: “In any action in which the custody of a minor child has been determined, upon a motion in the cause and a showing of changed circumstances pursuant to G.S. 50-13.7, the grandparents of the child are entitled to such custody or visitation rights as the court, in its discretion, deems appropriate. As used in this subsection, “grandparent” includes a biological grandparent of a child adopted by a stepparent or a relative of the child where a substantial relationship exists between the grandparent and the child. Under no circumstances shall a biological grandparent of a child adopted by adoptive parents, neither of whom is related to the child and where parental rights of both biological parents have been terminated, be entitled to visitation rights.”
These statues can either make or break a custody case for grandparents, and the courts will use them to determine the best interests of the child.
Grandparents Seeking Custody or Visitation
The U.S. Constitution guarantees that parents have the right to raise their children, and dictate who they spend time with, even grandparents. In North Carolina, parents have the “paramount right to custody, care and nurture” their minor children. Included within that right is the parent’s “right to determine with whom their minor children shall associate.” If you're a grandparent seeking custody, you will have to first establish a standing.
Standing in a lawsuit is "the ability under the law to bring the lawsuit". In a custody case between grandparent and parent, the grandparent must show the court that the parents have neglected or abandoned the minor child, are unfit to care for the child, or have taken action that is inconsistent with the parents’ constitutional paramount right to custody of the child. It is usually very difficult for a grandparent to defeat a parent’s constitutional right to custody.
If you believe that your grandchild’s parents are unfit, you need to speak with an attorney immediately. In many cases, what you may think of as neglect may not be under the legal standard. Call our experienced lawyers today and find out what your rights are and how we can help.
