When Should Grandparents Seek Visitation with Grandchildren through the Courts?

When parents of young children divorce, the whole family is affected, including grandparents. In an ideal situation, divorcing spouses allow and encourage their children to continue having contact with family members of both parents. Unfortunately, that’s not always the case. Conflicts that arise during divorce sometimes lead to one or both divorcing parents to refuse to allow the children to see the other spouse’s parents. What can grandparents do in this situation?

In North Carolina, under limited circumstances, the law protects grandparents’ ability to continue seeing their grandchildren after the parents divorce. Courts can award grandparents “independent” visitation – time in which to visit their grandchildren that is not contingent upon the divorcing parents’ approval – if the court determines that the visitation would be in the grandchildren’s best interest.

The first thing grandparents need to know, if they are thinking about seeking visitation through the courts, is that in most cases they must file a “Motion to Intervene” in the parent-spouses’ custody case while the custody case is pending. A “Motion to Intervene” allows grandparents to enter a custody case by becoming a party to the case. If grandparents fail to file a “Motion to Intervene” before the custody case is resolved, the “door is closed” and grandparents no longer have the legal ability to seek independent visitation through the courts.

North Carolina’s “grandparent visitation” statutes apply to various circumstances in which grandparents may seek to intervene and, if permitted to intervene, then seek visitation with their grandchildren. The statutes are as follows:

• 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.” North Carolina appellate courts have indicated that if a grandparent can show a “substantial relationship” with the child and a custody suit is pending, grandparents have a right to intervene.

• N.C. Gen. Stat. § 50-13.2A entitles a grandparent to seek visitation when the child is “adopted by a stepparent or a relative of the child where a substantial relationship exists between the grandparent and the child.” Under this statute, there need not be a pending custody case.

• N.C. Gen. Stat. § 50-13.5(j) entitles a grandparent to seek visitation “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 N.C. Gen. Stat. 50-13.7.” Under this statute, a grandparent must show that he or she has a “substantial relationship” with the child, and also that a “substantial change of circumstances affecting the welfare of the child” has occurred since a prior custody order was entered (more about this topic in a coming article).

• N.C. Gen. Stat. § 50-13.1(a) entitles a grandparent to “institute an action or proceeding for custody” of a grandchild under certain circumstances. Under this statute, a grandparent may sue for custody (not visitation) on grounds that the parents are unfit or have “acted inconsistently” with their constitutionally protected status as parents (this topic was addressed in a prior article). However, grandparents are not entitled to seek visitation under this statute when there is no pending custody suit and the grandchild’s family is “intact,” that is, neither parent has filed a custody suit and custody is not an issue being considered by the court. Further, North Carolina’s courts have made clear that a grandparent’s suit for custody is a very different type of case than a grandparent’s suit for visitation.

Under each of these statutes, it is the grandparents’ legal burden to prove to the court that he or she has a substantial relationship with the child, and that it is in the child’s best interest that the grandparent be awarded independent visitation.

Parents facing a potential suit from grandparents seeking visitation may wish to examine whether the grandparent does, in fact, have a “substantial” relationship with the child, and be prepared to show the court that it would not be in the child’s best interest that the grandparent be awarded visitation.

Under either scenario, “grandparent visitation” cases can be complex. Grandparents thinking about seeking visitation with a grandchild, as well as parents faced with a grandparent’s suit for visitation, should seek the advice of a Raleigh family attorney with experience and skill in this area of family law.