North Carolina does not formally recognize grandparent visitation or custody rights. In fact, some feel that the court discourages grandparents from seeking custody from a child's biological parents. The court does not allow claims involving grandparent rights unless there is evidence that the child's parents are unfit or have acted contrary to their constitutionally protected parental rights.
Some examples of grandparent rights claims may be cases of ongoing custody disputes involving other non-parent family members (including another grandparent), or cases where the current parent/child relationship is not intact.
Grandparent rights to visitation and custody in North Carolina
In order for grandparents to have a valid claim for custody rights, they must be able to prove to the court that their grandchild's parents are unfit or have acted contrary to their constitutional rights as parents. That claim may be established if the grandparents can show that the child's parents are not mentally able to take care of child, are not financially able to care for the child, abuse drugs, place the child in danger or have abandoned the child for a period of time. However, a child may be left by his or her parents, and not be considered abandoned, if they maintain contact with the child and come back when they are able to take care of the child.
It is important for grandparents to remember that it only takes a child and one parent to form an intact family in the eyes of the law. If one parent is deemed unfit and the other is fit, the family unit remains intact and the grandparents are not allowed to attack an intact family for custody. The government in North Carolina holds the viewpoint that family comes first and the government should not get in the way of family.
Additionally, if grandparents make a claim for custody of their grandchild and the court finds that the family is intact and the child's parent (or parents) is fit, the grandparents will not only lose their claim, but may also lose any contact they previously had with the child. In many situations, a parent may retaliate against the grandparents who made a custody claim (and lost) by not allowing them to see the child. The parent has every right to do this and the court will not intervene. The law considers it the prerogative of a fit parent to decide who may or may not be a part of his or her child's life, and that includes grandparents.
Grandparent visitation and custody
When emergency or temporary protective custody orders are issued for the child placing him or her with the grandparent, then custody becomes an issue and the family is not considered intact. This opens the possibility of granting custody rights of the child to other family members, including the other grandparents who do not have custody over the child. This may create a situation where it is grandparent versus grandparent battling for custody of their common grandchild.
Grandparents do not have a claim for visitation rights simply because their son or daughter won't let them see their grandchild. Even in a case of death or divorce of the child's parents, the grandparents can still end up without any custody or visitation rights, even when the child has lived with them. Grandparents must still be able to prove that the family unit is not intact, the child's parents are unfit or that the parents have acted contrary to their constitutionally protected rights. If there is one remaining parent in the child's life and the court considers that parent fit, the family relationship is still intact. In that situation, the grandparent's child (divorced father or mother of grandchild in a custody dispute) would have standing to try to get custody or visitation over the child (away from the other parent). Then the grandparents may be able to receive visitation from their child (grandchild's parent).
A classic example would be a case where the child's father moved to another state and abandoned the child (the child's parent is missing). The child's mother is not fit to care for the child (perhaps due to substance abuse) and the grandparents care for the child. In this case, the grandparents may have a claim for custody over their grandchild.
Recent legislation about grandparent rights
A proposed bill in the 2009 General Assembly relates to grandparent visitation rights (House Bill 590). This bill has not passed and would create a legislative committee to conduct a study regarding grandparent visitation rights and make corresponding recommendations. If passed, the committee would consider North Carolina's custody and visitation laws, the current laws regarding grandparent visitation rights, circumstances when grandparents should be granted visitation, other state statutes pertaining to grandparent visitation rights, and whether grandparent visitation should be granted in a supervised or unsupervised capacity.
Consult a lawyer in your area
If you are a North Carolina grandparent in this type of situation, it is important to speak to a family law attorney to learn about your legal rights. Grandparent custody rights cases are often very fact specific, and a lawyer will be able to help you determine whether you have a claim to pursue custody or visitation of your grandchild. Although North Carolina does not formally recognize grandparent rights, there are situations where your claim may be valid. An attorney knowledgeable in these types of cases may assist you in pursuing the best legal options in your circumstances.