North Carolina treats grandparents seeking custody like any other third-party or non-parent.
If a grandparent is seeking custody of a child, he or she may file an action for custody or seek to intervene in a pending action. However, before a judge will make any determination about whether a grandparent or any other third-party should be awarded custody of a child, a grandparent/third-party must first overcome the parents' constitutionally protected right to custody, care, and control of their child. This protected status means that a Court will presume that parents act and make decisions in the best interest of the child. In order to overcome this presumption, a grandparent must show that the parents are unfit or have otherwise acted inconsistently with their protected constitutional right.
However, custody and visitation, although often used interchangeably, are not synonyms under North Carolina law. Just because a grandparent does not have a claim for custody does not mean that a grandparent is precluded from seeking visitation with his or her grandchild. In fact, there are specific provisions in Chapter 50 of the North Carolina General Statutes that address grandparent visitation. Section 50-13.2(b1) states 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." Section 50-13.5(j) provides that after a custody determination has been made by the Court, a grandparent may seek visitation rights where there has been a substantial change of circumstances.
While this statutory provision makes it seem like the Court can award visitation to a grandparent as it sees fit, there are a few more determinations that a Court must make before awarding such visitation. As an initial matter, a grandparent may only obtain visitation if there is an ongoing custody dispute between parents, i.e. a pending/underlying custody action between the child's parents.
Assuming there is an ongoing custody dispute, a grandparent must first overcome the presumption that the parent's decision about with whom his or her child should visit is in the best interest of the child. This presumption stems from a parent's constitutional right to make decisions about the care, custody, and control of his or her child. If a grandparent overcomes this presumption, then the Court must conclude that visitation with a grandparent is in the child's best interest. Lastly, the visitation award must not negatively interfere with the parent-child relationship. Put another way, the Court should not grant a grandparent substantial time with the child such that a parent is deprived of his or her right to spend a majority of the child's life with the child.
Seeking visitation can be complicated, both emotionally and legally. If you are a grandparent pursuing the right to see a grandchild, Ward and Smith's Family Law attorneys have the experience and dedication to help.
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