Grandparents Rights in North Carolina

 “Grandparents rights in North Carolina”

In today’s society, the traditional family is evolving.  More and more, after raising their own children, grandparents are stepping up to the plate and raising their grandchildren. In 2010, 6.5 percent, or roughly 6 to 7 million  grandparents are now raising their grandkids, a 20 year high and double the rate in 1970.  The reasons are varied, including financial issues, incarceration, and substance abuse or mental health issues.  While it is admirable for grandparents to shoulder the responsibility of raising their grandchildren, in many circumstances, it is extremely difficult to gain legal custody or visitation through the courts in NC from a parent(s) who object to the arrangement.

Under the Constitution, parents have a constitutional right to the care, custody and control of their children.  However this right, is not absolute and can be waived by a parent in certain circumstances, for example,  when a parent’s conduct is inconsistent with the presumption that the parent can care for their own children or when the parent fails to shoulder the responsibilities that are attendant to rearing a child.

North Carolina has several statutes that address third party custody. NCGS 50-13.1(a) read literally basically states that anyone can petition for custody of a child if it would promote the best interests of the child.  However, several cases have significantly limited the application of this statute.  In general, a non-parent must prove that 1.) a parent is unfit, 2.) has neglected the welfare of the child, or 3)or has otherwise acted in a manner inconsistent with their constitutionally protected status as a parent.  If a third party, including a grandparent, cannot show the above, their custody action may be dismissed.  In addition, to proving the above, all third parties must allege and prove a sufficient relationship (e.g. not be a “stranger”) with the child to have the right to file a claim for custody that alleges a parent has lost their protected status. As of yet, the courts have not defined what constitutes a sufficient relationship to establish standing for a third party to bring a lawsuit as standing is generally determined on a case by case basis.

Grandparent visitation

Visitation rights of grandparents is another contentious issue.

In North Carolina, when an “intact family” exists, a third party, including a grandparent, may not intervene to ask the court for permission to see the child, over a parent’s objection.   After a judge has made a final decision about child custody and visitation, the child is legally considered to be living with each parent in an “intact family.”   Single-parent homes are considered as “intact” as homes in which both parents live together.  Therefore, when parents of a child are separated and a grandparent fears that one or both parents may prevent the grandparent from having a relationship with a grandchild, the grandparent may wish to intervene in the initial custody determination prior to the court’s decision on custody to establish custody or visitation rights with the grandchild which are not dependent on the goodwill of the custodial parent.  Once a grandparent is allowed to intervene, the court must decide whether a “sufficient relationship” exists between the grandparent and child, and whether that relationship warrants an order allowing a grandparent visitation with their grandchild.