Without question, divorce can be difficult in any number of ways, and during the divorce process, emotions run high. Perhaps in no circumstance, however, is divorce more difficult, or more emotional than when it comes to resolving issues of child custody. Most people love their children more than anything else, and of course always want what’s best for them. In the ideal situation, parents can agree on the ideal custody arrangement for their children, and set up a schedule that works in the best interests of everyone involved.
Certainly, parents have protected rights to have custody of and raise their children under the United States Constitution, and under North Carolina law, which states that parents of minor children have the “paramount right to custody, care, and nurture” of their minor children.” This is otherwise known as the “superior rights doctrine,” insofar as parents are considered to have rights that are superior to those of non-parents when it comes to determining and acting in the best interests of their children.
In some cases, however, the care and nurturing which is expected of parents for their children simply doesn’t happen. For any number of reasons, the parents may not be fit to have custody of the children, and may be unable to care for them properly. In these situations, the grandparents of the child(ren) involved may be able to seek and obtain custody of the children under North Carolina law.
Statutory Authority
North Carolina has four statutes under which grandparents may be able to seek visitation and/or custody of their grandchildren:
- 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.”
Standing
While these four statutes provide the option to seek custody or visitation under the law, in order to so do so, the party seeking custody must have “standing”. Standing simply means that the person who is seeking the custody has a right or interest that is recognized and protected under the law. If a person lacks standing, the court will not grant that person the relief sought. Understandably, then, a third party who has no relationship to the child(ren) would have no standing to seek custody.
North Carolina law does recognize two situations in which a non-parent has standing to seek custody of a child. Those situations occur when:
- The non-parent has a parent-like relationship with the child
- This means that the person has assumed parental duties and has an emotional attachment to the child similar to that of a parent. This may be shown if the non-parent does things like pay for the child’s daily necessities, taking the child to medical and dental appointments, attending parent-teacher conferences at school, and other similar responsibilities.
- The non-parent has a biological or adoptive relationship with the child, and there are allegations of abuse, neglect, or unfitness against the child’s parent(s).
Seeking Custody
Under the law, to successfully seek custody, the grandparent(s) seeking custody of their grandchild(ren) must clearly establish that the parents have neglected or abandoned the child(ren), are unfit to care for the child(ren), or have taking actions that are inconsistent with their paramount constitutional right to custody of the child(ren). After doing so, you must also prove that it is in the best interest of the child(ren) for their grandparents to have custody. Obviously meeting these elements is difficult to do in light of the strong legal preference for the parents.
If, considering the law and the proof that is required to obtain custody you still believe you can do so, you must proceed under N.C. Gen. Stat §50-13.1(a). Under this provision, you can file your claim for custody at any time, provided you can establish standing to do so. In arguing for custody, the grandparents must show, by the weight of the evidence, that both biological parents are unfit, have abandoned or neglected the child(ren), or have otherwise acted in a way that is inconsistent with their constitutionally protected status.
Examples of a parent acting inconsistently with their constitutional rights may include instances of abuse, neglect, drug or alcohol abuse, failure to properly care for the child’s basic needs, or voluntary relinquishment of custody. If the grandparents can establish that the parents acted inconsistently with their constitutional rights, the court will then engage in a “best interest” review to determine whether the child’s physical, emotional, social, and spiritual growth and well-being would be better served if the parents or grandparents were awarded custody.
What if I Just Want Grandparent Visitation?
In some situations, as a grandparent you may only be interested in seeking visitation with your grandchildren, as opposed to full custody. In that situation, it is still important to remember that parents do have the paramount authority with respect to the care and well-being of their children. Accordingly, unless certain elements of proof are met, it is unlikely that a court will order a parent to allow you to visit with your grandchildren. If, however, you believe you have a case and wish to pursue visitation, how you proceed will depend in large part on whether or not a custody action is already taking place between the parents.
If a custody action is already taking place, then as the grandparent you can file a motion to intervene in the case pursuant to N.C. Gen Stat. §50-13.2(b1). If you are found to have standing and are made a party to the case, you would then request that the court grant visitation with your grandchildren. It is important to remember, however, that even if you are allowed to intervene, you may not necessarily receive any visitation rights.
Where grandparents are concerned, the courts of North Carolina have clearly distinguished custody from visitation. In McIntyre v. McIntyre, 461 S.E.2d 745 (1995) the grandparents filed a lawsuit for visitation with their minor grandchildren, and at the time, no custody action was pending. The parties argued over whether the grandparents could legally ask for visitation when a custody action wasn’t pending. The parents argued that they were an intact family in which the parents had the authority to make these decisions. The North Carolina Supreme Court ultimately determined that the grandparents could not sue for visitation rights when the minor child was living in an intact family and no custody proceeding was ongoing.
As held in McIntyre, and upheld in numerous other cases, the law of North Carolina provides that grandparents only have the right to intervene and seek visitation while the custody case is ongoing. Once a custody arrangement is already in place, grandparents can generally no longer seek visitation. It should be noted that an exception to this rule exists in cases where the grandchild has been adopted by a stepparent or someone else related to the child. In that situation, the grandparent need not wait to intervene in a custody action, and can file a direct lawsuit for visitation rights pursuant to N.C. Gen Stat. §50-13.2A. Demonstrating a substantial relationship with the grandchild is still required in these instances, but intervention in an existing custody case is not necessarily required.
Even if grandparents do intervene on a timely basis, it is important to realize that courts can, and often do, deny grandparent visitation request on the grounds that it is in the best interest of the child for the parents to decide how often the children visit with their grandparents. Courts are typically more likely to grant visitation to grandparents in cases where a “substantial” relationship between the grandchild and the grandparent has been established. If, for example, a grandparent has helped to raise the grandchild since birth, or demonstrated active involvement with the child in the form of regular visits or overnight stays, courts are more likely to find that a substantial relationship existed, and to grant visitation accordingly.
Hiring an Attorney
Certainly, child custody matters can be complicated, both emotionally and legally. Whether you are a grandparent who would like to seek visitation with or custody of your grandchild(ren), or a parent who has concerns about protecting your legal rights, at the Law Office of Dustin McCrary, we can help. We understand the complexities of family law in North Carolina, and we have years of experience applying that knowledge in countless cases for clients across the community. We understand child custody and visitation issues, and we are passionate about helping our clients with these issues, and any others they may encounter during the divorce process. We would be honored to help you as well. Call us today.