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March 4, 2021 Blog

What Visitation Rights Do You Have as a Grandparent in North Carolina?

Grandparents and their grandchildren often share a special bond. When a child’s situation changes due to the separation, divorce, or death of his or her parents, these changes can make it difficult for a grandparent to spend time with the child. In some situations, grandparents can ask North Carolina courts to protect visitation rights. State laws on grandparent visitation rights are complicated, and courts will only grant grandparents’ visitation rights in narrow circumstances. If you are a grandparent seeking visitation rights, it is important that you reach out to an experienced North Carolina family lawyer. At Gailor Hunt Davis Taylor & Gibbs, PLLC, we have helped many grandparents successfully obtain visitation rights.

 

Seeking Custody vs. Seeking Visitation Rights

In some situations, grandparents can seek full or partial custody of a grandchild or grandchildren rather than child visitation. Keep in mind that seeking custody rights is different from seeking visitation rights. When grandparents receive custody, they obtain all of the rights of the child’s parents. Grandparent custody claims are considered third-party custody matters in North Carolina, a separate issue from visitation rights. 

 

Obtaining custody of your grandchildren can be challenging. North Carolina family court judges automatically presume that the child’s natural or legal parents should have custody because it is in their best interest. However, suppose the parents have neglected, abused, or abandoned their children by failing to provide safe housing, participate in their upbringing, protect them from harm, or contribute to child support. In that case, a judge may award custody to a grandparent. You will need to overcome the presumption, which is a legal assumption, that natural parents should retain custody.

 

What Do Visitation Rights Include?

Visitation rights are not always limited to merely visiting with a grandchild in person. Grandparents can also ask the court to spend time with their grandchildren through electronic communication such as emails, telephone calls, text messaging, and video conferencing tools. Even if you live a significant distance from your grandchildren, you can still request that the court allow you to video chat and continue your relationship with them. Grandparents have a right to petition the court for visitation rights after the court has made a custody order in a separation, divorce, or adoption. Grandparents can also request visitation rights when a child custody action is pending before the judge issues a final order.

 

Requesting Grandparent Visitation Rights in a Pending Custody Action

North Carolina law allows a grandparent to request visitation rights in a pending child custody action, a process called intervening in the custody action. Under North Carolina law, a grandparent is defined as “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.” 

 

There is an important limitation in North Carolina’s statute. Biological grandparents of a child adopted by parents who are not related to the child and whose biological parents have had their rights terminated cannot seek visitation rights. In other words, if non-biological parents have adopted your grandchild and a court has terminated the rights of the biological parents, you cannot pursue visitation rights.

 

Proving a Substantial Relationships Exists Between You and Your Grandchild

What will you need to prove to obtain visitation rights as a grandparent? You will need to prove that you have a substantial relationship with your grandchild. Judges will consider your relationship’s nature based on the evidence you used to prove that you are close with your grandchild. In all child custody matters, judges consider what action is in the best interest of the child. They will weigh various factors related to your grandchild’s emotional, physical, and social growth and well-being. When the court determines that visitation between you and your grandchild would help your grandchild’s overall well-being, they will grant you visitation rights.

 

Filing a Motion to Modify an Existing Custody Order

What if a court has already issued a custody order involving your grandchild? You can file a motion for modification of an existing custody order. You will need to show that there have been changed circumstances that warrant your visitation rights. As the person filing for the modification, the burden is on you to show that there has been a significant change in circumstances since the court ordered the original custody agreement. 

 

Filing an Action for Visitation of a Grandchild Adopted by a Relative or Stepparent

North Carolina has a unique law that allows biological grandparents to request visitation rights with a grandchild adopted by a relative or stepparent. The legislature wanted to encourage biological grandparents to continue spending time with their grandchildren after a relative adopted them. As with other child visitation actions, courts will consider the best interest of the child when determining whether to grant a petition or not. Additionally, as with all child custody matters, courts will need to include findings of fact to support a conclusion that allowing the grandchild to visit with the grandparent is in the child’s best interest.

 

Starting the Process of Requesting Visitation Rights

You can request visitation rights by filing a petition, which is a formal written request. You will need to file your petition in the court in the county where your grandchild lives. If you already have a visitation order but you would like to modify it to include more time, you can ask the court to enforce the order or modify it based on your changing circumstances.

 

Contact a North Carolina Grandparents’ Rights Lawyer Today

Spending time with grandchildren is incredibly important, and when grandparents are denied the right to enjoy time with their grandchildren it can be extremely challenging. If you would like to request visitation rights or modify a current visitation agreement, the experienced family lawyers at Gailor Hunt Davis Taylor & Gibbs, PLLC are here to help. Contact us today to schedule your initial appointment and learn how we can help you navigate the process of obtaining visitation rights.

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