The right to retain control over children is a fundamental right. This means that typically there has to be a severe infraction by the parent(s), including but not limited to: abuse, neglect, or willful abandonment, for the parent(s) to lose the fundamental rights they have under the Constitution. Grandparents have rights as well, however, these are more limited. Grandparents can qualify as de-facto custodians or psychological parents in order to exercise their rights. A case decided in 2021 ruled that parents’ rights are more paramount than those of grandparents.
This recent North Carolina case demonstrates the extent of grandparents natural rights when they conflict with the wishes of a parent. In Alexander v. Alexander, 276 N.C. App. 148, a 2018 Permanent Order by the trial court granting the Grandparents permanent extensive visitation rights was ruled to be unconstitutional by the court of appeals.
For context, the Grandparents were the paternal grandparents of the child. The parents of the child had divorced in 2014 and the parents entered into a 2014 Consent Order. The Father developed cancer in 2016 and died in 2017. The Child lived with the grandparents when visiting the father during custody periods. The Grandparents moved to intervene and for permanent visitation rights while the Father was still alive. While the Father’s situation was growing more dire, the court granted the Grandparents some temporary rights regarding the care of the Child. After the Father died, the Mother sought an order to have the Grandparents’ rights terminated as she was now the Child’s sole parent.
The trial court entered the 2018 Permanent Order after a hearing on the matter. In the 2018 Permanent Order, the trial court awarded Mother primary physical and sole legal custody of the Child but awarded the Grandparents permanent, extensive visitation rights. The Mother appealed the judgment. On appeal, the Mother contended that the trial court had no statutory authority to award the Grandparents visitation rights once the Father had died and she became the Child’s sole parent. Alternatively, she argued that any statute which authorized a court to grant the Grandparents visitation rights is unconstitutional as it conflicts with her constitutional rights to raise her child as she determines. The court of appeals found that the trial court had statutory authority but not constitutional authority to invoke the 2018 Permanent Order.
The court of appeals reasoned that the 2018 Permanent Order is unconstitutional in two different ways. First, the trial court failed to give consideration to the Mother’s determination regarding with whom her Child may associate. Second, even if Grandparents are entitled to an order providing visitation rights, the extent of the visitation which was granted in the 2018 Permanent Order went too far because it interfered with the parent-child relationship with the Mother and her Child.
Ultimately, grandparents do have rights, however, the rights of the biological parents are more significant and constitutionally protected, and will trump the grandparents’ rights. The holding in Alexander v. Alexander states that grandparents do not have a constitutional right nor rights under our common law to seek visitation as against the rights of a custodial parent(s).
At King Law, there are attorneys throughout North and South Carolina who handle these types of cases and can represent you in this unique situation. Call our toll-free number at 888-748-5465 (KING) to request a consultation with one of these experienced attorneys.