Over 2.5 million grandparents in the United States are responsible for the grandchildren living with them. Our firm’s North Carolina and South Carolina attorneys are asked daily about “grandparents rights” and what that means.
North Carolina recognizes this special position by granting grandparents the ability to gain custody or visitation of their grandchildren in four different scenarios. Parents have a long-standing, fundamental, constitutionally protected right to control the care, custody, and associations of their children, but grandparents have important rights that can override that parental status.
The Court of Appeals of North Carolina released an opinion on April 7, 2020, Graham v. Jones, which clarifies when grandparents may have custody or visitation of their grandchildren. First, the Court of Appeals made sure to distinguish between “custody” and “visitation” when it comes to grandparents. While these two terms are usually used interchangeably when a Court talks about the parents, with grandparents, they are treated differently. Custody for grandparents means the grandchild will primarily live with the grandparent(s) and the grandparent(s) will be able to make major decisions for their grandchild. Visitation, when it is granted to grandparents, means specific times, and sometimes certain places, the grandparents can spend time with their grandchildren.
For a grandparent to have the right to file for custody of their grandchild, the child’s parents must be either “unfit” or “acting contrary to their constitutionally protected status.” Unfitness and acting against Constitutionally protected rights are legal determinations to be made by a judge. Circumstances that can give rise to this are severe substance abuse, to the point of being all but absent, abandoning the child, severely abusing the child and other things of this caliber. Finding a parent unfit or acting contrary to their Constitutionally protected right is a high bar to overcome. If there are circumstances like these, reach out to an attorney and they can help you figure out if there is the potential for a parent to be found unfit by a Court.
The statutes that allow grandparents to seek visitation with their grandchildren (or “the grandparent visitation statutes”) provide three “specified situations” when visitation can be granted:
- If there is an on-going custody dispute involving the child, the grandparents may be granted visitation as part of the custody dispute under North Carolina General Statute Section 50-13.2(b1), but the grandparents cannot initiate their own custody action.
- Biological grandparents can seek visitation under North Carolina General Statute Section 50-13.2A when the grandchild is adopted by a stepparent or other relative of the child, and there is a substantial relationship between the grandparent and the grandchild.
- Grandparents can “intervene” in an existing custody action under North Carolina General Statute Section 50-13.5(j) and allege a “substantial change in circumstances affecting the welfare of the child” since the original custody order was entered, and a modification would be in the “best interest of the child.”
Under the three grandparent visitation statutes, grandparents may only be granted visitation when there is an on-going custody dispute, meaning the parents of the child have already filed actions against each other, or the child is in the custody of a stepparent or other relative. This also means that a grandparent may not file for custody or visitation of their grandchild if a biological parent of the child passes away, but the other biological parent is alive and not an unfit parent. In that instance, sole custody of the child is with the surviving parent alone.
Grandparent visitation and custody matters are a minefield to navigate in North Carolina. At King Law, our team is experienced in grandparent custody and visitation matters and can help any grandparent determine whether they are eligible to file for custody or visitation, and can advocate on behalf of the grandparent if they can file for custody or visitation.
If you interested in knowing your rights as a grandparent in your particular circumstances, please call us at 888-748-KING (5464) to schedule a consultation with an experienced member of our legal team. King Law has locations across Western North Carolina in Asheville, Brevard, Hendersonville, Columbus, Marion, Rutherfordton, Forest City, Morganton, Shelby, Lincolnton, and Hickory. We also serve clients in the Upstate of South Carolina from our offices in Spartanburg, Gaffney and Greer. You can also request a consultation on our home page. We are here to walk with you step-by-step through this process and help improve the situation for your grandchildren and those you love.