Under the United States Constitution, and under North Carolina law, parents have the “paramount right to custody, care, and nurture” of their minor children.” This is otherwise known as the “superior rights doctrine,” and essentially, it means that parents are considered to have rights that are superior to those of non-parents when it comes to determining and acting in the best interests of their children. Thus, for the most part, in North Carolina and across the country, courts will seek to allow parents to maintain custody of their children whenever it is possible.
In certain instances, however, parents may be unwilling or unable to provide a safe and nurturing environment for their children. In those situations, the court may consider other options, and grandparents may seek to petition the court for custody of their grandchildren. Certainly, if you are a parent or a grandparent who finds yourself in this situation, consulting an attorney should be your first step.
Generally, however, it can be helpful to know that as a grandparent seeking custody of your grandchildren under the North Carolina General Statutes, 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). While there are different ways to meet this burden of proof, in some cases grandparents may show that an unfit parent may:
· Have abandoned their child;
· Have continually neglected their child;
· Have abused their child;
· Have shown an ongoing pattern of substance abuse;
· Have decided to voluntarily give up custody of their child;
· Be unable to provide a safe and nurturing home for their child;
· Have a proven history of domestic violence;
· Be unable in other ways to provide the safe and nurturing home that the child needs to grow and thrive.
If, considering the law and the proof that is required to obtain custody you believe you can do so, you can proceed to seek custody under N.C. Gen. Stat §50-13.1(a). Under this provision, you can file your claim for custody at any time, provided you can establish standing to do so. Standing simply means that the person who is seeking the custody has a right or interest that is recognized and protected under the law. Certainly, the ultimate determination as to whether or not a grandparent is granted custody will be left to the discretion of the court, as is the case with all custody matters.
In other situations, grandparents may only be interested in seeking visitation with their grandchildren, as opposed to full custody. In that situation, parents continue to have the paramount authority with respect to the care and well-being of their children. Accordingly, unless certain elements of proof are met, it is unlikely that a court will order a parent to allow visitation with their grandchildren. While grandparents do have a right to file a motion to intervene in an ongoing custody action between the parents to seek visitation, this does not mean that the request will be granted. Generally, and absent extraordinary and extenuating circumstances, courts feel that the parents are best suited to make this determination on their own.
 North Carolina law does recognize two situations in which a non-parent has standing to seek custody of a child, including when: (1)The non-parent has a parent-like relationship with the child (when the person has assumed parental duties and has an emotional attachment to the child similar to that of a parent; or (2)The non-parent has a biological or adoptive relationship with the child, and there are allegations of abuse, neglect, or unfitness against the child’s parent(s).
If you need to speak with an experienced divorce attorney regarding grandparent visitation and custody, please contact Adkins Law to arrange a consultation.
If you have thought it through and have ultimately decided that divorce is the best path forward for your family and your future, then you will soon have many decisions to make as you pursue this decision. From telling your spouse and children to choosing an attorney and gathering important documents that will be necessary as your case proceeds, planning ahead is important. While planning ahead will certainly not make your divorce proceedings stress-free, it will go a long way toward making them less stressful than they would otherwise be. Planning ahead helps to you feel and be more prepared in many life situations, and divorce is no different.
BREAKING THE NEWS: TELLING YOUR SPOUSE AND CHILDREN
Telling Your Spouse
It goes without saying that there is no “easy” way to tell your spouse that you want a divorce – but there are certainly some ways to approach this conversation to make it better than it otherwise might be. First, it should be said that prior to having this conversation with your spouse, you should be very certain that it is a conversation you want to have. Sometimes, without truly thinking it through, one spouse might tell the other that they want a divorce as a way of getting their attention, or persuading their spouse to do something, or to stop doing something. We would caution against this. It is harmful to your relationship if it is not what you truly want, and it may also damage your credibility in the future, when you truly do feel that divorce is the best option.
Once you have officially made the decision to proceed with divorce however, and you are certain that it is what you want, it is worth making every effort to ensure that a conversation which has the potential to be very uncomfortable and painful goes as smoothly as it possibly can. Of course, every relationship, and every set of circumstances leading up to this conversation will be unique. Ultimately, you know your spouse best, as well as the best time, place, and manner in which to have this conversation. Keeping that in mind, here are some helpful guidelines for making a difficult conversation slightly less so:
While you will not entirely eliminate any emotional stress during a divorce conversation by taking these steps, they will make a difference in the overall tone of the conversation, and should help to make a painful situation more manageable for you, and for your spouse. After telling your spouse, the two of you will want to decide, together, when and how it is best to tell your children.
Telling Your Children About Divorce
While divorce is certainly difficult for everyone, perhaps one of the hardest aspects is worrying about how it might affect your children. Without question, a certain amount of pain and heartache is inevitable – any time that a family splits apart, this will be the case. However, how you handle these matters with your children – both in the way that you talk to and interact with them, and in the way that you choose to interact with your spouse in the future – can make a significant difference in whether the overall impact of the divorce is negative or positive.
With that in mind, you and your spouse will of course need to decide together how you plan to approach the first conversation with your children when you tell them about your decision to divorce. Of course, each family is unique. You know your own children best, and are in the best position to determine how to break the news to them in a way that will be as emotionally healthy as possible. Some guidelines to consider when doing so include:
While telling your children about your divorce will certainly not be easy, the manner in which you do so is very important. Take the time necessary to have a thorough conversation, and put ample thought into that conversation beforehand. Stay calm, and make sure that both parents stay on the same page and remain committed to putting their emotional issues aside for the sake of their children’s well-being during this time. Doing so will make the divorce process easier for your entire family.
If you need to speak with an experienced family law attorney, contact Adkins Law to arrange a consultation.