When Grandparents Raise Grandchildren: Legal Rights and Considerations in North Carolina
If you are a grandparent, chances are you love your grandchildren very much. Understandably, you probably love spending time with your grandchildren and want to ensure they are well cared for and loved. What happens, though, if you don’t feel that’s the case? What happens if the grandchild’s parents prevent you from visiting? Do you have any rights if you believe the children are in an unsafe situation? These are all normal and understandable questions to ask.
In North Carolina, the law recognizes grandparents have some rights when it comes to their grandchildren, although those rights are fairly limited unless extenuating circumstances exist. Let’s take a closer look at what North Carolina law says about grandparents’ rights and what considerations you may need to keep in mind as a result.
The Parental Presumption
As a general rule, North Carolina law presumes that a child’s biological parents are the proper people to care for the child. As a result, the parents understandably have the most legal rights and responsibilities. In fact, our United States Supreme Court has recognized what is legally called a “presumption” in favor of parents. Essentially, this means that courts across the country must presume that a parent knows what is in a child’s best interest and acts in the best interest of their children, until proven otherwise.
As a result of the parental presumption, it is generally true that parents are the ones who determine how much time a child spends with their grandparents. While the presumption may be overcome in some instances, it is not necessarily easy to do so.
In some cases, for example, parents may be unable to take care of their children. There could be an issue with addiction, a health issue, a criminal history, or any number of other reasons that prevent the parent from being able to be the primary caretaker. In these circumstances, grandparents may need to step in and help. As a result, it’s important to understand the differences between visitation and custody rights and how they might apply in the context of a grandparent-grandchild relationship.
Grandparent Visitation Rights
There are generally a few scenarios in which grandparents can seek visitation rights in North Carolina. These include:
There is an ongoing custody dispute involving the child
It is important to understand that North Carolina law generally does not allow grandparents to initiate a lawsuit against parents who have an intact family and are not undergoing divorce proceedings. Typically, grandparents must seek visitation rights from a court when child custody is currently an issue being litigated by the parents. If that is the case, a grandparent can intervene in the action under North Carolina General Statute Section 50-13.2(b1), but the grandparents typically cannot initiate their own custody action for purposes of seeking visitation.
When a step-parent or other relative adopts the child
Under North Carolina General Statute Section 50-13.2A, if a grandchild is adopted by a step-parent or another relative and the grandparent and grandchild have a substantial relationship, the grandparent may attempt to seek visitation with the child on those grounds.
When there has been a substantial change in circumstances
Pursuant to North Carolina General Statute Section 50-13.5(j), a grandparent may intervene in an existing custody action if they believe that there has been a substantial change in circumstances affecting the welfare of the child after the initial custody order was entered, and if they believe that a modification of that order would be in the best interest of the child.
North Carolina law does provide that a trial court can include terms providing for grandparent visitation in an official custody order if the court determines that doing so is appropriate after a review of the evidence and based on one of the foregoing statutes. As a general rule, however, those visitation rights are often fairly limited and must not interfere with the rights of the parents as primary custodians.
This may be difficult news for grandparents, and that’s understandable. It’s normal to want to spend time with your grandchildren and to want to be involved in their lives, if possible. In the majority of cases, however, unless there are extenuating circumstances, the desires of the parents concerning grandparent visitation will usually control.
What happens, however, if a grandparent needs more than simply visitation? What if the parents abandon the child, pass away, or are unfit for any number of other reasons? In these instances, grandparents may wish to seek actual custodial rights. North Carolina law does recognize that this situation may arise and provides avenues for grandparents to assert these rights if necessary.
Grandparent Custody Rights
Children need caretakers who will do all they can to ensure they are loved, nurtured, and encouraged to thrive. In the majority of cases, parents are fortunately able to fulfill that role, although this is sadly not always the case. If there is a situation in which a parent is unfit to care for a child because of addiction, criminal history, mental health issues, or is simply unwilling to care for the child, someone else may need to step in. In many cases, that “someone” is a grandparent. In fact, millions of grandparents assume this role every year, and they play an essential role in the lives of the grandchildren they love.
Certainly, there are situations in which it is appropriate for a grandparent to seek custody of a child. The good news is that North Carolina has a statute that provides an avenue for a grandparent to do so. Under North Carolina General Statutes § 50-13.1, “any parent, relative, or other person…claiming the right to custody of a minor child may institute an action or proceeding for the custody of such child [in accordance with the statute].”
Unlike the case with visitation, a grandparent does not need to wait for the parents to initially bring a custody suit in order to seek custody of the child. Depending upon the circumstances, a grandparent can initiate a suit or intervene in an existing action. In April of 2020, the Court of Appeals of North Carolina released an opinion in the case of Graham v. Jones.
In that opinion, the court addressed the issues of grandparent visitation and custody. In doing so, the court distinguished between the two concepts, noting that visitation consisted of the grandparent visiting the child at certain times and specific places. In contrast, the concept of custody meant that the child would primarily reside with the grandparents, who would make the major decisions regarding the child’s well-being.
Ultimately, the court held that in order for a grandparent to have the right to file for custody of a grandchild, the parents of the child must either be “unfit” or “acting against their constitutionally protected status.” The court explained that whether or not the parents were unfit was a decision for a judge, who may consider a variety of factors and the overall circumstances involved when making that decision.
Regardless of the route a grandparent chooses, they must still overcome the constitutionally protected and presumptive right of parents to custody, care, and control of their children. This can be a difficult burden to meet, but sometimes, doing so truly is in the best interest of the children involved.
Understandably, the law surrounding grandparent visitation and custodial rights can be complex and confusing. It can even feel overwhelming if you’re in a situation where you are trying to ensure that you can care for the grandchildren you love if they are in difficult circumstances. The good news is, you don’t have to feel that way alone. At The Law Office of Dustin McCrary, we’re here to help.
The Law Office of Dustin McCrary – Always Here for You
At The Law Office of Dustin McCrary, we know there is probably nothing more important to you than caring for the children – or the grandchildren – you love. That’s why we’re here to help. Knowing and understanding your rights as a parent and as a grandparent is important and can provide much-needed peace of mind. We understand every aspect of the divorce process, including your legal rights and responsibilities. We’ll help you protect your rights and pursue the best possible outcomes for those you love. If you’re ready to take the first step on this important journey, give us a call. We’re here for you and we’re ready to help. We look forward to speaking with you soon.