WHAT RIGHTS DO GRANDPARENTS HAVE

When It Comes To Custody & Visitation Of Grandchildren During A Separation And Divorce

NORTH CAROLINA LAWS

TIMING IS CRITICAL IN DETERMINING VISITATION

Many grandparents stress about whether or not they will be able to spend time with their grandchildren when their child faces a divorce. Your right as a grandparent to make a claim for visitation could be lost if you wait to long before taking action. It is essential that you contact our team early, so we can help you make informed decisions on what to do next in order to maintain close relationships with your grandchildren. Our legal team understand the NC statues that could allow grandparents to maintain visitation depending on the situation. Below are the NC statutes that could apply to your situation. The most important thing to understand is that grandparents cannot independently seek visitation privileges. Those petitions must be made in the context of intervening during custody proceedings, or after a custody order has been finalized. This means that visitation rights for grandparents typically only come up in the context of divorce, separation, or adoption. Remember the court always puts the best interest of the child first and will determine if you should have visitation and how often the visitation is allowed.

NC Laws – Custody and Visitation Rights of Grandparent

N.C.G.S. §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. Any person whose actions resulted in a conviction under G.S. 14-27.21, G.S. 14-27.22, G.S. 14-27.23, or G.S. 14-27.24 and the conception of the minor child may not claim the right to custody of that minor child. Unless a contrary intent is clear, the word “custody” shall be deemed to include custody or visitation or both.

N.C.G.S. §50-13.2(A) Action for visitation of an adopted grandchild.

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. An order awarding visitation rights shall contain findings of fact which support the determination by the judge of the best interest of the child. Procedure, venue, and jurisdiction shall be as in an action for custody. (1985, c. 575, s. 2.)

N.C.G.S §50-13.2(b1)   Who entitled to custody; terms of custody; visitation rights of grandparents; taking child out of State; consideration of parent’s military service. [Effective until January 1, 2023]

(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. 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.

NC.G.S. § 50-13.5(j)   Procedure in actions for custody or support of minor children.

(j) Custody and Visitation Rights of Grandparents. – 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. (1858-9, c. 53, s. 2; 1871-2, c. 193, ss. 39, 46; Code, ss. 1292, 1296, 1570, 1662; Rev., ss. 1567, 1570, 1854; 1919, c. 24; C.S., ss. 1664, 1667, 2242; 1921, c. 13; 1923, c. 52; 1939, c. 115; 1941, c. 120; 1943, c. 194; 1949, c. 1010; 1951, c. 893, s. 3; 1953, cc. 813, 925; 1955, cc. 814, 1189; 1957, c. 545; 1965, c. 310, s. 2; 1967, c. 1153, s. 2; 1971, c. 1185, s. 24; 1973, c. 751; 1979, c. 110, s. 12; c. 563; c. 709, s. 3; 1981, c. 735, s. 3; 1983, c. 587; 1985, c. 575, s. 4; 1987 (Reg. Sess., 1988), c. 893, s. 3.1; 1999-223, ss. 11, 12; 2017-22, s. 2.)

THE PROCESS

GETTING CUSTODY OF YOUR GRANDCHILDREN

Getting custody can be a grueling process, and it’s important to have a lawyer helping you to make the best argument possible. Under North Carolina law, anyone may pursue the adoption of a child, and the court will make a ruling based on the most suitable option for that child. It is far more difficult for grandparents to seek custody of a grandchild then it is for a grandparent to seek visitation. Grandparents can sometimes take temporary or permanent custody of their grandchildren under specific circumstances, but the burden of proof will be for the grandparents to show why they should receive custody.

If there is not an open case, your only option is to seek custody. In order to survive a ruling on standing (the right to file a lawsuit), grandparents must show that the parents have abandoned the child, parent is unfit to care for a child, parents are incarcerated, or deceased, or if the grandchild is being severely neglected. Abandonment, severe mental illness, drug abuse, inability to support the child, and an unsafe environment can all be factors in considering lack of fitness to raise a child. Also, both parents would need to be deemed unfit or voluntarily give up custody.

The last thing you want is for your grandchild to enter the foster care system. Grandparents can have an advantage in seeking custody since they are family and typically have an existing relationship with the child. In fact, courts often seek out relatives to care for the child if the parents cannot or will not. This does not guarantee custody.
An important factor to keep in mind is if DSS wouldn’t take the grandchild away from their parents, a judge isn’t going to award grandparents the custody. The court’s main concern is the best interests of the child—their safety and well-being are the absolute top priorities.

YOU NEED A

STRONG LEGAL STRATEGY

NORTH CAROLINA LAW

N.c.g.s.§ 50-13.1. ACTION OR PROCEEDING FOR CUSTODY OF MINOR CHILD.