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February 8, 2017 Blog

When Should You Seek “Grandparent Visitation” through the Courts?

By: Stephanie Gibbs

When parents of young children divorce, grandparents may be affected.  In an ideal situation, divorcing spouses allow and encourage their children to continue seeing the family members of both spouses.  Unfortunately, that’s not always the case.  Conflicts that arise during divorce sometimes lead to one or both spouses refusing 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 see 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:

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.  If you are thinking about suing for visitation, or you are faced with a grandparent’s lawsuit, you should seek the advice of an attorney with experience and skill in this area of family law.

 

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