It is a truth universally acknowledged that “it” happens. Parents get divorced. And that leaves grandparents in a precarious situation. What if Mom takes the child? What are Paternal Grandma and Grandpa to do? Is there anything they can do? In North Carolina, the answer is a solid Maybe.
Although it might seem obvious (“I’m the grandfather. Of course I have grandparents’ rights!”), there are circumstances where grandparents of a grandchild may lack standing (the legal right to bring a particular cause of action or to request and be granted particular relief), to even petition the court to be awarded court-ordered time with their grandchild. In North Carolina, biological grandparents have standing to bring an “intervenor” action for “visitation” (more on that in a moment) unless the child has been adopted. If the grandchild has been adopted, the grandparents cannot petition the court for visitation with the grandchild unless the adopting parent is (1) a stepparent or blood relative of the child and (2) the grandparents have a “substantial relationship” with the child. What constitutes a substantial relationship is determined on a case-by-case basis. If the preceding conditions are met and if a custody action is pending between one parent against the other, biological grandparents can institute an intervenor action for visitation rights with the grandchild. A Court can then, in its discretion, award visitation if it determines that such is in the best interest and welfare of the child.
In North Carolina, grandparents’ rights, as defined by statute, are somewhat limited. N.C. Gen. Stat 50-13.2(b1) states, in part, that 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.” While a reading of the above statute might suggest that grandparents have a clear-cut statutory right to see their grandchildren and as such, a cause of action by which to petition the Court for such, that is in fact not the case.
“Visitation” as relates to parents and “visitation” as relates to grandparents is not the same. Generally speaking, when one parent is granted “custody” and the other parent is granted “visitation” what it means is that the parent who has “custody” of the child is the parent with whom the child will be residing primarily. The parent who has “visitation” is the parent whom the child will reside with for some lesser time. A more apt description than “custody” and “visitation” might be that one parent has “primary custody” and the other parent has “secondary custody.”
For grandparents however, “visitation” means something more along the lines of “see and spend time with socially” (note that this is not a hard legal definition it is just a de facto description of how it works out practically speaking). Grandparents in North Carolina generally do not have standing to bring independent custody actions. They have instead what are referred to as “intervenor rights.” N.C. Gen. Stat. 1A-1, Rule 24(a)(2) states, in part, that upon timely application, “anyone shall be permitted to intervene [of right] in an action: when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or imped his ability to protect that interest.” North Carolina courts have held that child custody proceedings are the types of transactions and a grandparent’s interest in being part of a grandchild’s life one of the types of interests which allows for intervention on the part of a grandparent into a custody action initiated by one parent against the other. Unfortunately, as the name suggests, intervenor rights allow only for intervention in a suit that is already being brought by one parent against the other; it does not allow for grandparents to initiate their own custody action. Grandparents who are concerned about the potential fallout of a custody action or who have a less-than-stellar relationship with any one of the parents may choose to intervene in a custody action even if they don’t feel their time with the grandkids is currently threatened. A grandparent who does not join the original custody suit as an intervenor and who is later denied visitation by the custodial parent has no legal recourse unless the case goes back to court.
One statutory based limited exception to the above comes in the form of N.C. Gen. Stat. 13.5. 13.5 states that “in any action in which the custody of a minor child has been determined, upon a motion in the cause and a showing of changed circumstances pursuant to G.S. 50-13.7, the grandparents of the child are entitled to such custody or visitation rights as the court, in its discretion, deems appropriate.” As the statute suggests, if there has been a substantial change in circumstances affecting the best interests and welfare of the child, a grandparent who is interested in visitation with the grandchild may bring a motion requesting such.
As noted above, generally speaking, grandparents cannot institute custody actions on their own. They can only intervene in custody actions brought by one parent against another. If however, grandparents wanted to file an action not just for visitation but for actual custody of a grandchild, the grandparents would have to prove that the grandchild’s parents have acted in a manner or engaged in conduct that is inconsistent with their paramount constitutional status as parents.
The Courts have repeatedly held that parents have a constitutional right to raise their children and a constitutional right to raise them as they see fit. That constitutional right is not unfettered – there are limits (e.g. physical or emotional abuse of the child is verboten) but those limits are broad. Generally, parents are given great latitude in terms of their individual parenting styles. Grandparents seeking actual custody over their grandchildren will have to show the Courts that the parents have acted (or failed to act) in such a way as demonstrates that they have abrogated their rights and duties as parents. In North Carolina, this means that the parents must have acted in a manner as would constitute grounds to terminate their parental rights pursuant to N.C. Gen. Stat. 7B-1111 (e.g., abuse, neglect). Absent clear, cogent, and convincing evidence of such, a grandparent cannot be granted custody of the child over the biological parents.