Under North Carolina Law, there are some circumstances where a grandparent would have standing to seek visitation rights with their grandchildren.  The courts’ limitations are that grandparents in North Carolina have no rights to ask for visitation when their grandchildren are living with both their parents without concern of an impending separation or divorce.  When there is an issue in regard to grandparent visitation, courts have to balance parents’ rights and the best interest of child.

Troxel v. Granville

In 2000, the U.S. Supreme Court addressed visitation rights for grandparents.  A law in Washington says that a court has the power to grant visitation to people other than the parents if it is in the best interest of the child.

Tommie Granville and Brad Troxel had two children together but never married.  After they split in 1991, Brad moved in with his parents, Jenifer and Gary Troxel.  Brad would bring the girls to see their grandparents regularly.  Brad committed suicide in May of 1993.

After the death of their son, the Troxels were able to continue to see their granddaughters on a regular basis.  Shortly after Brad’s death, the girls’ mother decided that she wanted to limit the contact her girls had with Brad’s parents to one day a month and no overnight visits.

The Troxels were upset by this change and filed a petition in December of 1993 asking the court to order visitation between them and their granddaughters. Specifically, they asked the court for two weekends per month and two weeks during the summer.  The girls’ mother asked the court limit any visits her children had with the Troxels to one day a month and no overnight visits.

The trial court granted the Troxels one weekend per month, one week each summer, and a four-hour visit on each of the grandparents’ birthdays.  Tommie did not agree with the trial court and the case went to the Washington Supreme Court.  The Washington Supreme Court found that the law violated a parent’s rights to raise their own children the way they see fit.  The non-parental visitation statute of Washington State was too broad and the Washington Supreme Court found it unconstitutional.

The Supreme Court of Washington said that the courts do not get to make those significant decisions in regard to visitation just because they might make a better decision than the parties.  “Parents have a right to limit visitation of their children with third persons and the parents should be the ones to choose whether to expose their children to certain people or ideas.”

This case then went to the U.S. Supreme Court, where they agreed with the decision and explanation from the Washington Supreme Court.   The original trial court had burdened the mother to show the court why visits with the grandparents would not be in her daughters’ best interest.  This was in opposition of the assumption that a parent who is fit would act in the best interest of their children.  According to the U.S. Supreme Court, the trial court in Washington violated the mother’s constitutional rights to exclusively make decisions in the best interest of her children.

Balancing Interests

There are various interests and rights that a court has to balance when they are deciding on visitation petitions in regard to a third party.  Some of the interests that need to be weighed are:

  • The child’s interest in maintaining a connection with a non-parent who may be more important in the child’s life than a biological parent;
  • the rights (if any) of the third parties;
  • the rights of the parents.

The first step for non-parents seeking rights to visitation is to show they have standing in the court.  Standing is a legal right of a person to ask the court for something in a specific situation.


In North Carolina, a grandparent would have standing to ask the court for visitation under three different statutory provisions.  A grandparent, by law, is the biological grandparent of the child, unless it is a situation where the child has been adopted.  At the time of an adoption, the adoptive child is considered to have become part of the family’s bloodline and the grandparents (in the adoptive family) then have standing.

Stepparents do not have standing whenever their familial line to the child has been terminated by death or divorce of the child’s stepparent.

In cases of stepparent adoption or other blood relative adoptions, the biological grandparents of the child will continue to have standing as long as they have a substantial relationship with the child.  But, if the adoptive parents have no blood relation to the child and the biological parents’ parental rights have been terminated by the court, the biological grandparents do not have standing to ask for visitation.

The next case is about a biological grandparent asking the court for visitation when the adoptive family of the child is a family member.

Hill v. Newman

Crystal had two children that she was unable to care for.  Crystal’s sister Peggy and Peggy’s husband adopted the two girls in 1995.  Joyce, both Crystal and Peggy’s mother, motioned the court for visitation rights with the girls.  Peggy and her husband did not agree with Joyce having visitation with the girls.

In 1997, the trial court found that it was not in the best interest of the grandchildren to have visits with their grandmother because of the animosity between all the parties.  Joyce appealed the trial court’s ruling.  The court of appeals said 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.”

The court of appeals had to look to find the situation that best encompassed Joyce and her relationship to the girls.

Situation 1: Statute is available for grandparents who sought visitation rights when: the parents are unfit, have abandoned or neglected the child, or have died; or, by reason of separation or divorce, custody is at issue between the parents

Outcome 1:  neither situation applies to Joyce and the children

Situation 2:  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.  With “grandparent” including 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

Outcome 2:  Still did not apply because there was no custody dispute

Situation 3:  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 [N.C. Gen. Stat. §] 50-13.7, the grandparents of the child are entitled to such custody or visitation rights as the court, in its discretion, deems appropriate.  “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

Outcome 3:  this case does not involve a custody dispute, so this law could not be used to establish Joyce’s standing

Situation 4: A biological grandparent may start 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 and the court may award visitation rights if it determines that visitation is in the best interest of the child.  The court gives a grandparent standing to seek visitation if “a substantial relationship exists between the grandparent and the child.”

Outcome 4:  Joyce lived near her grandchildren and had helped raise them since their births.  Also, prior to the adoption by their aunt, the children had lived with Joyce for about eight months. The court was able to find that a “substantial relationship” existed and therefore, Joyce had standing to seek visitation.

Now that the court has established that Joyce can ask the court for visitation, the court needs to determine if visitation is in the best interest of the children.  The trial court found the following:

  • Joyce never accepted that Peggy and her husband were the children’s adoptive parents and felt that the children were still Crystal’s;
  • The girls were involved in many community and church activities so time for visitation with their grandmother was limited;
  • Peggy’s visits to Joyce with the children were very difficult. Joyce would interfere with Peggy’s parental authority;
  • At one visit, Joyce spent much of the visit upset about her inability to see the children more often;
  • At another visit, Joyce threatened to run off with the children;
  • Joyce arranged for the children to meet with Crystal without Peggy’s permission and when Peggy objected, Crystal assaulted Peggy and threatened to kill her, in front of the children;
  • The children were regularly upset by events occurring during visitation with Joyce;
  • The adults in the family did not get along and most likely never would.

The court of appeals reviewed the evidence presented at the trial court level and found that the trial court did not abuse its discretion when it denied visitation to Joyce.

Substantial Relationship

Substantial relationship in regard to a grandparent/grandchild relationship is not defined in North Carolina. The court has found substantial relationship when regular visitation occurs in the home of the grandparents, and when the grandparents engage in social activities with their grandchildren.  If the parent of the child stops visits, that timeframe where the grandparent does not have contact is not allowed to be used as evidence saying the grandparents don’t have a substantial relationship with their grandchildren.

Other Third Parties Seeking Visitation

Besides grandparents, North Carolina law does acknowledge rights to visitation to other third parties.  There are certain limited circumstances where a third party could be seek custody: if a parent dies, a parent engages in misconduct, or another person has a parental status with the child.

Some people — domestic partners, stepparents, and others who previously had a close relationship with the child — would most likely find it more difficult to get visitation rights than to get custody of the child.  The case below looks at how the Supreme Court limits third party visitation.

Petersen v. Rogers

Pamela Rogers gave birth to a son and gave him to social services for the purpose of adoption.  The baby boy was placed with William and Patricia Peterson just a few days after his birth and they then filed an adoption petition, which was granted.  Three years later, the adoption was voided by the court and it was ordered that the little boy be returned to the biological parents.  The Petersens asked for custody of the child, or at least visitation.

The trial court denied the motion of the Petersens for custody and visitation and they appealed.  The ruling from the North Carolina Supreme Court said that parents are given a right to the custody, care, and control of their child, which is constitutionally protected.  The rights of the parents outweighed the interests of the Petersens.

The ruling from the North Carolina Supreme Court noted that who was a better parent was not a factor in the court’s decision about custody as long as a parent is adequately providing for the child.  Additionally, best interest of the child does not apply in situations where the parent or guardian has custody of their own child as long as the child’s minimum care is being taken care of by the parent.

The following are findings from the trial court that the Supreme Court took into consideration:

  • Pamela made continuous attempts to set aside her consent to give up her child for adoption;
  • William Rowe (the child’s father) sought to legitimate his son;
  • Pamela and William were fit parents and there was no finding they neglected their son’s welfare

The Petersens did not have any rights to ask for visitation and strangers cannot bring an action against parents of children that they are not related to.  In this case, the Petersens would be considered strangers despite their three-year relationship with the child.

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