Can I Have Visitation with my Grandchildren?

Among the many joys that life offers, having children, for many people is among one of the greatest, closely followed by getting to watch your children grow, and have children of their own. Most grandparents love their grandchildren deeply, and cherish the time that they are able to spend together. For the most part, this relationship is one that is very valuable and important for everyone involved.

For any number of reasons, there are times when grandparents wonder if they have legal rights to visitation with, or even custody of, their grandchildren.  Sometimes, a divorce is involved, and other times it is some other event – a relocation, a separation, or a deterioration in the relationship that the grandparent might have with one of the parents – that causes the grandparents to lose time with his or her grandchildren, and wonder if there is any legal recourse available. In other cases, it is not so much that the parents choose to distance the children from their grandparents, as much as it is true that the parents are for some reason unable to care for the children adequately that causes grandparents to ask whether they might take custody of the grandchildren, either temporarily or on a permanent basis.

These issues can be legally complex, and are often very dependent upon specific factual circumstances. Beyond the legal complexities involved, these issues are also often very emotionally charged, as is often true when relationships with deep and lasting connections are involved. If one answer were to be provided, it would be this – generally, and for the most part, parents have the primary, and often the final say when it comes to what is best for their children. While it may be very difficult for many grandparents, this is true even when it comes to whether or not the children spend time with their extended family, and if so, how much time they spend.

According to both the United States Constitution and the laws of the state of North Carolina, parents are considered to have paramount rights when it comes to raising their children. This “superior rights doctrine” only makes sense, as parents typically know their children best, love them most, and have the right to raise their children in a way that they feel will serve their best interests.  As a result, in the huge majority of cases, courts in North Carolina and across the country will typically strive to allow parents to maintain custody of their children whenever possible, and to make the decisions that they feel are best for their children.

There are, of course, some instances in which parents are simply unable or unwilling, for any number of reasons, to provide the safe and nurturing home that their children deserve. The parents may struggle with issues of addiction, abuse, mental illness, or other problems that simply make it impossible. In these situations, courts are forced to consider other options for the health and well-being of the children, and in these situations issues of grandparent custody often arise.

North Carolina law provides four statutes under which grandparents or other qualified third parties may seek to obtain visitation with or custody of children:

·       N.C. Gen. Stat. §50-13.1(a) provides that, “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.”

·       N.C. Gen. Stat. §50-13.2(a) reads, “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 are 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.”

·       N.C. Gen. Stat. §50-13.2(b1) states that, “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 relative of the child where a substantial relationship exists between the grandparent and the child …”

·       N.C. Gen. Stat. §50-13.5(j) provides that, “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 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.”

Prior to being able to seek custody or visitation under any of these statutes, however, the person seeking custody must establish that he or she has “standing” to do so. Standing essentially means that the person seeking custody has in interest or a right which is recognized and protected under the law. Without standing, a court will not hear a case.

·       Visitation: For grandparents who want to seek visitation, the best (and usually only) opportunity to do so is to intervene in an already pending child custody action. In other situations, a court might previously have made a custody determination, but a request for modification of custody might be filed for any number of reasons.

As the statutes above indicate, a “grandparent” is defined as “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.” Essentially, this means that if the child’s biological parents passed away, or had their parental rights terminated for some reason, and another unrelated person adopted the children, then the grandparents cannot intervene. If the grandparent is allowed to intervene, however, in order to have a chance at being granted visitation with the grandchildren, they must demonstrate that a “substantial relationship” exists between the grandparents and the grandchildren. Unfortunately for grandparents eager to secure visitation time with their grandchildren, the term “substantial” is not defined by the statute. It is ultimately up to the court to view the evidence and make a determination as to the nature of the relationship. 

Regardless of the statute under which the grandparent ultimately seeks visitation, it is important to realize that in making its determination, the court will always seek to serve the “best interests” of the grandchildren, which means considering a wide range of factors concerning the child’s physical, emotional, and mental health and well-being. It is also very important to remember that simply seeking visitation does not mean that it will necessarily be granted. Unfortunately, it is all too often the case that grandparents get their hopes up about visitation, only to find that a court refused to award it. Generally, courts are reluctant to interfere with parental rights in any way, and that includes ordering visitation, unless the proof is clear that it is warranted and in the best interests of the grandchildren involved.

·       Custody: As the above statutes indicate, in North Carolina, in order to seek custody of your grandchildren, you must be able to demonstrate to the court that the child’s parents are unable to fulfill their parental duties, which essentially means that you must establish that the parents have taken actions that are inconsistent with their paramount constitutional right to custody of the child(ren).  If you are seeking custody, as opposed to merely visitation, you do not need to wait to intervene in an existing action – pursuant to N.C. Gen. Stat. §50-13.2(a), you may file an original action on your own. While there are different ways to meet this burden of proof, in some cases grandparents may show that an unfit parent may:

o   Have abandoned their child;
o   Have continually neglected their child;
o   Have abused their child;
o   Have shown an ongoing pattern of substance abuse;
o   Have decided to voluntarily give up custody of their child;
o   Be unable to provide a safe and nurturing home for their child;
o   Have a proven history of domestic violence;
o   Be unable in other ways to provide the safe and nurturing home that the child needs to grow and thrive.

As is the case with seeking visitation, however, obtaining custody of your grandchildren in a situation where the parents are not unfit is highly, highly unlikely.

Regardless of whether you intend to seek custody of, or visitation with your grandchildren, the most important first step in doing so is to consult with an attorney who understands the complexities of the law and how they might apply to your particular circumstances.

If you need to speak with an experienced child custody attorney in Huntersville NC, contact Adkins Law to arrange a consultation with a family law attorney. 

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