When a family experiences a separation or divorce, a grandparent sometimes loses contact with their grandchildren through no fault of their own. We are often asked what rights the grandparent has, if any.
In North Carolina, a grandparent has the right to claim visitation with their grandchildren under certain circumstances, even over the objection of one or both parents. There are several statutes that permit a grandparent to maintain an action for visitation of their grandchild:
Understand that biological parents have a 14th Amendment right to care for a nurture their children. This is called the “Peterson presumption” in North Carolina, which provides that custody with a parent is presumed to be in the child’s best interest. The grandparent must overcome this presumption to obtain custody. Therefore, for a grandparent to prevail against a parent in an action for child custody, they must show that the parent(s) is either unfit, has neglected the child(ren), or has engaged in conduct inconsistent with their protected status (i.e., voluntarily giving up custody of a child to a non-parent). Grandparents, and non-parents bringing an action for custody, must prove their case with clear and convincing evidence.
If you have questions regarding grandparent custody and visitation rights in North Carolina, contact Adkins Law. We have offices in Huntersville and Charlotte for your convenience.
By Christopher Adkins
In North Carolina, parents have the legal right to have custody of their children unless clear and cogent reasons exist for denying them this right. This right is not absolute but requires substantial and sufficient reasons for interference or denial.
Who may bring an action for child custody?
Any parent, relative, or other person, agency, organization, or institution may bring an action or proceeding for the custody of a minor child. Limitations exist on third parties that may bring a custody action as the parents have a constitutionally protected paramount right to the custody, care, and control of their children.
What is the standard of proof when a third party challenges custody?
When a third party challenges the natural parents for custody of a minor child, the standard of proof required to overcome the presumption of the parents to have custody of their children is "clear and convincing evidence." This means that a third party, whether this is a grandparent, aunt, uncle, or otherwise, must show by clear and convincing evidence that it is in the best interests of the child that the third party be awarded custody.
How can a third party show that it is in the best interests of the child for the third party to have custody?
A third party may show that the natural parents have been or are unfit to have custody. Unfitness, neglect, and abandonment constitute conduct inconsistent with the parents' protected status. Proof of this type of conduct may help prove custody with the natural parent(s) is not in the best interest of the child.
How do I modify an order awarding custody to a third party?
If a third party is awarded custody of a minor child, the natural parent(s) may seek a modification of the order if they are able to prove that a substantial change in circumstances has affected the welfare of the child. If the natural parent(s) can prove that there has been a substantial change of circumstances affecting the welfare of the child, and that a change in custody may be in the best interests of the child, they may be able to regain custody.
If you need to speak with a family law attorney in regards to third party child custody, please contact Adkins Law. Adkins Law has locations in Huntersville and Ballantyne, and primarily serves Mecklenburg County, Charlotte, and the Lake Norman area.