By: Stephanie Gibbs
North Carolina custody laws are clear that parents have the Constitutional right to make decisions regarding their children, including whether their children may visit their grandparents. What happens when parents “freeze out” grandparents, refusing to allow them to visit the grandkids?
In an “intact family” – a family where mom and dad are living together with the children – grandparents do not have the right to demand visits with their grandkids. But when parents separate, grandparents who have been “frozen out” may have the chance to ask a judge for the right to visit their grandchildren. If one of the parents files a custody lawsuit, both the maternal and paternal biological grandparents may ask to “intervene” in the lawsuit so that they can ask the court to award them visitation rights. “Intervening” means asking the court to allow the grandparent to become a party to the lawsuit so that he or she can ask the court for visitation rights.
North Carolina’s main “grandparent visitation” law says:
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 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 is related to the child and where parental rights of both biological parents have been terminated, be entitled to visitation rights.
N.C. Gen. Stat. § 50-13.2(b1) (2016).
Current law does not allow “step” grandparents’ to intervene in a pending custody action.
To intervene, a grandparent must show the court that he or she has a “substantial relationship” with the grandchildren. While North Carolina law does not specifically define “substantial relationship,” grandparents who seek court-ordered visitation with their grandkids typically describe, in their Complaint, the nature of their relationship with their grandchildren: Activities they have done with the children (playing, reading, traveling); care they have provided for the children (babysitting, providing meals, helping with homework); financial and other tangible support they have provided for the children; the amount of time they have spent with the children, and the quality of the relationship they share with the children – loving, nurturing, caring.
Timing is very important in seeking court-ordered visitation rights. Grandparents who wish to intervene must do so while the parents’ custody action is pending, before a permanent custody order is entered by the court (signed by the judge and put in the court file). Once a permanent custody order is entered, grandparents lose the legal ability to intervene. Grandparents don’t regain the legal opportunity to intervene unless and until one of the parents files a Motion to Modify the existing permanent custody order.
Several other North Carolina laws specifically pertain to grandparent visitation, and North Carolina’s broader custody laws also provide for grandparents to seek custody of their grandchildren in certain situations.
If you are concerned about your rights, as the grandparent of children whose parents are divorcing, you should consult with an attorney knowledgeable in the specific laws that relate to grandparent custody and visitation.
Stephanie Gibbs is a Board-Certified Family Law Specialist who represents grandparents seeking visitation rights and/or custody of their grandchildren.