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February 7, 2021 Blog

A Guide to Grandparents’ Rights in North Carolina

Grandparents have a special bond with their grandchildren. Even though they are not the children’s biological parents, they typically have similar protective feelings and give their grandchildren lots of love and devotion. But however strong the bond is, the legal rights of grandparents in the eyes of the law can be weak, jeopardizing their ability to spend time with their grandchildren in times of tragedy or estrangement. 

In most situations, grandparents have visitation rights only when the child’s parents give permission. This isn’t a problem when family ties are strong and everyone is on good terms. But if the child’s parents divorce, there’s an estrangement, or the parents are unable to care for their children, grandparents’ rights come into the picture. 

If you’re worried about maintaining your right to see and protect your grandchildren in North Carolina, it’s always a good idea to speak with a lawyer as soon as possible. They will help you understand the legal implications of your situation and help you get visitation rights or even custody, depending on the circumstances. 

So, do you have any legal ground to stand on in getting visitation or custody? Here are the basics of grandparents’ rights in North Carolina. 

What Rights Do Grandparents Have in North Carolina? 

In some cases, grandparents have rights in North Carolina, but they may be more limited than in some other states. Generally, grandparents can only expect a legal right to visitation if the parents are struggling in some way and cannot care for the children without outside support or intervention. If the child’s parents divorce, for instance, and the main custodial parent is denying visitation, it might be worth petitioning the court for visitation. 

The most important thing to understand is that grandparents cannot independently seek visitation privileges. Those petitions must be made in the context of intervening during custody proceedings, or after a custody order has been finalized. This means that visitation rights for grandparents typically only come up in the context of divorce, separation, or adoption. 

If the court agrees that a child’s grandparent should get visitation rights, this might include in-person visits and/or electronic communication, such as calls, video conferencing, email, and text messaging. Grandparents typically need to offer proof that the child’s family structure is no longer stable to receive visitation rights. 

It’s important to note that single parents are still an “intact” family as far as the welfare of the child goes. Visitation concerns usually come up if the parents are in a custody dispute or if the child has been adopted by another relative and the grandparents are no longer able to see them on a regular basis. 

Courts will only grant visitation rights if it is in the child’s best interests. Therefore, the burden of proof is on grandparents to show why they should be involved in their grandchildren’s lives. 

Custody or Visitation? 

Typically, the situation informs the type of rights grandparents are seeking. If the child is being cared for properly, visitation is usually the most important right for a grandparent. It is almost always better for a child to remain with his or her parent(s) whenever possible. 

With that said, there are some situations that might prompt a grandparent or grandparents to seek custody and raise the child full-time. If a parent is unfit to care for a child, if they are incarcerated, or they are deceased, custody might come into question. Grandparents can sometimes take temporary or permanent custody of their grandchildren under these circumstances. 

Getting visitation granted can be challenging, and full, permanent custody even more so. However, grandparents who are willing to fight for their rights can sometimes succeed. Fighting for custody is especially important if the child would otherwise enter foster care. 

Seeking Custody 

If your grandchildren’s parents are unable or unwilling to care for them, then you can pursue custody. However, both parents need to be deemed unfit or voluntarily give up custody. Abandonment, severe mental illness, drug abuse, inability to support the child, and an unsafe environment can all be factors in considering lack of fitness to raise a child.  

Under North Carolina law, anyone may pursue the adoption of a child, and the court will make a ruling based on the most suitable option for that child. Because of this, grandparents have an advantage in seeking custody—they are family and typically have an existing relationship with the child. In fact, courts often seek out relatives to care for the child if the parents cannot or will not. But this does not guarantee custody. 

The court’s main concern is the best interests of the child—their safety and well-being are the absolute top priorities. As a grandparent seeking custody, you need to be able to prove that you can adequately provide care for your grandchild full-time. Getting custody can be a grueling process, and it’s important to have a lawyer helping you to make the best argument possible. The last thing you want is for your grandchild to enter the foster care system. 

Existing Relationships Matter 

When it comes to grandparents’ rights, the most important factor is the relationship. It’s much easier to get visitation rights or custody if you are able to demonstrate that there is a strong, existing relationship between you and your grandchild. Unfortunately, the requirement of a “substantial relationship” is not defined and is highly subjective, giving the court a lot of freedom over what qualifies as substantial. 

If you’ve provided child care, had your grandchildren stay with you overnight, provided financial support for their care, or lived with your son or daughter and their children, these bonds will factor into the court’s decision on visitation. If you have a desire to get to know your grandchildren but you cannot prove a substantial existing relationship, then it will be almost impossible to get visitation rights. 

Proof can be a challenge, depending on the nature of your relationship. Photos, receipts, testimony from people who know you, and written communication can all help to establish the bond you have with your grandchildren. Your legal counsel will also give you ideas on how to furnish the necessary proof. 

Grandparents’ Rights and Adopted Children 

When a biological parent gives up their child for adoption, they sign over all rights. Unfortunately, grandparents who want to spend time with their biological grandchildren in these situations are out of luck. There are no provisions for grandparents’ rights in these cases because there are no parental rights. 

However, if your grandchild was adopted by a step-parent or another relative, you may be able to get visitation rights even if you are not seeking custody. You must be able to show that you have a substantial existing relationship and that it is in the best interests of the child or children to continue visitation. 

Your Son Or Daughter Can Deny You Visitation 

Unfortunately, there are many legal limitations on the rights of grandparents in North Carolina. If your son or daughter and/or their partner is able to care for their child properly and the family is intact, then they are under no obligation to allow you visitation rights. This is a devastating reality for grandparents who have taken the time to build a wonderful relationship with their grandchildren but have had a falling out with their own child. 

Estrangement from your children is painful, especially if it also cuts off access to your grandchildren. While you might want to speak with a lawyer to see if you have any legal rights to visitation with your grandchildren, know that you may need to find some way to repair the relationship for that to happen. The court will generally stick with the wishes of the child’s legal parents. 

If Your Relationship is Threatened 

Most grandparents only need to worry about visitation rights when those rights are threatened. If you think that you might not be allowed to see your grandchildren in the future due to your son or daughter’s divorce proceedings, a family rift, or incarceration, it’s important to seek help as soon as you can.

A North Carolina family law attorney can help guide you through the process of seeking visitation rights. The first step in the process is always a discussion to see if you have any legal rights to visitation and custody or go from there. If you’re worried about losing access to your grandchildren, it’s better to contact a lawyer sooner rather than later. 

Finding an Attorney to Advocate For You 

Choosing the right attorney to help you with grandparents’ rights in North Carolina is important. You should work with a lawyer in the family law specialty who has the experience to help you resolve your problem and spend time with your grandchildren. 

Grandparents who want to be involved in their grandchildren’s lives no matter what deserve help in navigating the legal hurdles of getting visitation or custody. At Gailor Hunt, our experienced family law attorneys in Raleigh bring experience, compassion, and determination into every case. Call 919-367-1512 to get started and discuss your case with someone who will advocate for you in and out of the courtroom. 

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