North Carolina Grandparents' Rights

Two Unusual Provisions Make Winning Visitation Difficult

grandparents rights in north carolina
Grandparents want to keep up with grandchildren, but some state laws make it difficult. Photo © Bloom Productions | Digital Vision | Getty Images

The statutes of the state of North Carolina are not very friendly to grandparents seeking visitation with grandchildren. The law reads much like the law in many other states, but two provisions make winning visitation difficult.

Filing for Visitation in North Carolina

North Carolina does not have a statute dedicated to grandparents' rights. Instead grandparents are mentioned in sections of the law dealing with general custody and visitation.

In addition, the term "custody" encompasses both custody and visitation, which can be considered temporary custody. It can be difficult to read and interpret the law as it applies to a grandparent seeking visitation. 

The first mention of "grandparent" states, "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." That seems promising, but actually presents a problem. 

A suit may be entered only in connection with a custody suit, not in an independent action. Because grandparents in North Carolina cannot file an independent action for visitation, some grandparents seek visitation rights as a part of a grandchild's custody case even if they are not being denied contact. They consider it insurance for the future. If a  grandparent fails to join the original custody suit for a grandchild and later is denied contact, that grandparent has no recourse unless the case ends up back in court.

Intact Families in North Carolina

North Carolina's definition of an intact family is broader than the usual definition, and that can cause problems for grandparents. It is far harder to win visitation with a grandchild who lives in an intact family. In North Carolina, single-parent homes can be considered intact.

In most other states, intact families are those in which the parents are married or living together. 

Here's how it may work in North Carolina. if Johnny's parents are divorced, his paternal grandparents may be able to see him when he visits his father. If his father dies or loses contact for some other reason, the grandparents could be cut off with no legal recourse, because the unit formed by the remaining parent and children is considered an intact family. That's another reason some grandparents file for visitation even before being cut off from contact. 

This definition of an intact family is not found in statute but was decided by the Supreme Court of North Carolina in the 1995 case of McIntyre v. McIntyre.  In that case, a man separated from his wife and then died. When his parents sued for contact with his daughter, their granddaughter, the court ruled that the mother and daughter constituted an intact family and the grandparents did not have standing to sue. The court reinforced that concept in the 1997 case of Fisher v. Gaydon. In that case, a woman had two children with different fathers and had not lived in a marital relationship with either. Instead, she and her two children had lived together, and the court designated them as an intact family.

 

Who Has Standing

In order for grandparents to petition for visitation, they must first establish that they have standing. In North Carolina, biological grandparents have standing as long as their grandchild has not been adopted. Adoption cuts off the grandparents' rights unless the adopting party is a stepparent or blood relative. In that case, biological grandparents retain their standing as long as they have a "substantial" relationship with the child.

The statute does not define a substantial relationship, but if the grandchild has lived with the grandparents for a significant period of time, that should constitute a substantial relationship. Having the grandchildren visit often or stay overnight is also a plus for grandparents. If the grandparents and grandchildren participate in social and recreational activities, that should help.

Providing routine or occasional child care is also a positive factor.  

More About the Law

North Carolina is one of the few states to provide for virtual visitation. Such visitation is suggested as a supplement to, not a replacement for, face-to-face time, but it could be a boon to a long-distance grandparent.

General provisions about child custody and visitation are contained in North Carolina General Statutes, Section 50-13.2. The statute about visitation of an adopted grandchild is contained in Section 50-13.2A. The section about grandparents being able to sue for visitation in changed circumstances is in Section 50-13.5j.

It is obvious that winning visitation with grandchildren in North Carolina is no easy matter. Most grandparents will need an attorney rather than representing themselves in court. They might also consider other steps to take before suing for visitation rights