Being a grandparent is a wonderful phase of life for many people. Most grandparents truly love their grandchildren and enjoy spending as much time with them as they can. Ideally, grandparents who are actively involved in the lives of their grandchildren will continue to be able to be a part of their lives, even in the event that the parents decide to divorce.
Sometimes, however, even in cases where parents do not decide to divorce, they make the decision, for any number of reasons, that they no longer want the grandparents to be involved in the children’s lives. As the United States Supreme Court held in the case of Troxille v. Granville, 530 U.S. 57 (2000), “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 is generally the line of thinking in state courts all across the country.
Despite this, grandparents often ask whether or not North Carolina law entitles them to visitation with their grandchildren, and whether there are steps they can take to seek that visitation. The short answer is – yes. In certain, limited situations, grandparents may seek visitation, and we’ll discuss some of those situations in this article.
We should note that the discussion that follows focuses solely on grandparent visitation rights in North Carolina. In other situations, a grandparent may wish to seek full or partial custody of a grandchild instead of simply seeking visitation. These are separate issues, and we encourage you to review the other articles on our page regarding grandparent custody matters. We also encourage you to contact us at the Law Office of Dustin McCrary at any time if you need professional legal assistance with these matters.
Statutory Authority
It is important to note that if grandparents do wish to seek visitation, the best and only time to do so is when an open divorce lawsuit is pending before the court. North Carolina law provides 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.
While this may seem harsh, and unfortunate from the perspective of the grandparent, in North Carolina, as in all other states in the country, parents are considered to have paramount and superior rights when it comes to their children, unless the parents have, in some way, proven themselves unfit to care for their children. Thus, if there is not a divorce action pending, and the parents, who are otherwise fit, do not wish for their children to see their grandparents, there is very little recourse available to a grandparent other than to ask the parents to reconsider.
As noted, however, if a divorce action is open and pending before the court, a grandparent may seek to intervene in that action and request visitation with his or her grandchildren. In North Carolina, the following four statutes that provide legal authority for seeking visitation with one’s grandchildren:
- (N.C. Gen. Stat. §50-13.1(a)) “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)) “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) “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))“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.”
There are a few important caveats to know about the statutory provisions allowing grandparents to intervene and seek visitation. First, the statute provides that:
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.
In simpler terms, this means that grandparents cannot proceed under this section if unrelated parents adopted the child, and the parental rights of the biological parents (who were actually related to the grandparents) were terminated. So, you must actually be biologically related to the grandchildren at issue to be allowed to proceed.
If you are biologically related to the grandchildren, and if a divorce action is pending, you may intervene to seek visitation. For a court to grant visitation, case law and statute generally provide that:
- A substantial relationship must exist between the grandparent and the grandchild: The law does not specifically define a “substantial relationship,” so it is up to the court to determine the nature of the relationship based upon the evidence provided. In past cases, North Carolina courts have found that a substantial relationship exists when regular visitation occurs in the home of the grandparents, and when the grandparents engage in social activities with their grandchildren.
- Visitation with their grandparents would be in the “best interests” of the grandchildren: In visitation cases, the court will weigh a broad range of factors in determining what is in the children’s best interest, including assessing what would most benefit their emotional, physical, and social growth and well-being.
Ultimately, when making a determination on visitation, there are various interests and rights that a court has to balance. 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.
If the above two elements of proof are met, and the court has balanced the various interests and decides that grandparent visitation is in the best interest of the grandchildren, then the court may decide to grant visitation to the grandparents. If visitation is granted, the court will set the terms and provide the details of the visitation rights, and all parties will be expected to follow those terms.
Additional Questions or Concerns? Contact The Law Office of Dustin McCrary Today
At The Law Office of Dustin McCrary, we have represented countless clients on any number of family law and divorce-related matters, over many years. We have seen and understand the emotional pain and difficulty that can be a part of navigating these complex and difficult issues, and we want our clients to know that we are here to help. If you have additional questions about visitation, or about any other aspect of the divorce process for which you need excellent, compassionate, and professional assistance, call us soon.