When a grandparent and grandchild share a special bond, changes in the child’s family situation (like separation, divorce, and death) can adversely affect the grandparent’s time with the child. In some situations, North Carolina law allows a grandparent to ask a court to grant visitation rights. However, the state laws on grandparent visitation rights are extremely limited and complex.
The discussion that follows focuses only on grandparent visitation rights in North Carolina. In some family situations, a grandparent may wish to seek full or partial custody of a grandchild (rather than visitation). Grandparent custody rights relating to a grandchild (which are third-party custody matters) are a completely separate issue from visitation rights. Grandparent custody is not covered in this article. However, our family law attorneys at The Twiford Law Firm can help grandparents with both visitation and custody issues relating to grandchildren.
Several different statutory sections relating to child custody, visitation, and adoption address grandparent visitation rights. A grandparent may request assistance from a court only if their situation falls within one of these provisions. But even if a grandparent may request court involvement, granting visitation is entirely within the judge’s discretion.
A specific statute, N.C. Gen. Stat. § 50-13.1(b1), allows a grandparent to request visitation rights during a pending child custody action by intervening in the action. For these purposes, 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.”
The law has a specific limitation:
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 other words, grandparents cannot proceed under this section if unrelated parents adopted the child and the parental rights of the biological parents were terminated.
For the court to grant visitation in this situation and the two others discussed below, the statute requires the grandparent to demonstrate that a substantial relationship exists between the grandparent and grandchild. The law does not define that term. The court considers the nature of the relationship based on evidence produced about the relationship between the grandparent and child.
In visitation cases, the court has discretion to award visitation based on what is in the “best interest of the child.” In making the decision whether visitation is in the child’s best interest, the judge weighs a wide range of factors relating to the child’s physical, emotional, and social growth and well-being.
A different statutory section, N.C. Gen. Stat. § 50-13.5(j), allows a grandparent to file a motion in a case where the court previously determined custody, if the grandparent can show changed circumstances that would entitle the grandparent to visitation rights. The burden of demonstrating a sufficient change of circumstances is on the grandparent requesting modification of the custody order.
The same definition of grandparent applies in this situation as applies to intervening in a pending custody matter. The limitation relating to a child adopted by unrelated parents also applies.
Another statutory section, N.C. Gen. Stat. § 50-13.2A, allows a biological grandparent to initiate an action for visitation rights with a grandchild adopted by a stepparent or a relative of the child. Grandparents cannot bring an action under this statutory section if parents unrelated to a child adopted the child.
As in other visitation actions, the legal standard that applies is what is in the best interest of the child. The law also provides that a visitation order must include findings of fact to support the conclusion that visitation is in the child’s best interest.
This statutory section also includes the limitation regarding unrelated adoptive parents that applies to intervening in a custody action.
Under North Carolina state law, a grandparent may only ask a court for visitation rights in the specific situations outlined above. However, being able to ask for a court order does not ensure that the court will grant visitation. The outcome of any case involving issues relating to grandparent visitation depends entirely on the facts and circumstances of the situation and the court’s determination of what is in the child’s best interest.
A grandparent does not have a right to visitation with a grandchild in any circumstances. Even where the law permits filing a request for visitation, the judge has discretion in determining visitation. In general, courts are reluctant to interfere with parental rights and judgments, including in cases involving grandparent visitation.
Any grandparent visitation issue involving a child is complicated from both legal and emotional perspectives. If you are a grandparent experiencing difficulties relating to visitation with your grandchild — or a parent addressing grandparent visitation issues —, you should talk with an experienced family law attorney early in the process. Your lawyer will explain relevant laws and discuss what options may be available. Then, you can make an informed decision that takes all aspects of the situation into account.
Our family and domestic law attorneys at The Twiford Law Firm are here to help with grandparent visitation issues, however they arise. We also assist with child custody matters and the full range of other family law matters.
With offices in Elizabeth City and Moyock, we serve clients throughout northeastern North Carolina, including the Outer Banks. Contact us today at 252-338-4151 or 252-435-2811 to schedule an initial consultation.