More children live with their grandparents today than in years past.

The U.S. Department of Census reports that 23% of children are regularly cared for by their grandparent(s) and that children are more likely to be cared for by grandparent(s) if the parents are separated, divorced, or were never married.¹

About 5.7 million children (8% of all children in 2006) in the United States live with a grandparent and the majority (3.7 million) live in the grandparent’s home. In about 40% of these homes, no parent is present.²

The rights of a grandparent to visit with their grandchild or have custody has been a recent news topic. The highest courts in Hawaii, Pennsylvania, Colorado, and Utah have recently ruled on this issue.³ North Carolina continues to refine its case law on this issue in light of the United States Supreme Court’s decision in Troxel v. Granville in the year 2000.⁴ In that case, the Supreme Court determined that the State of Washington’s visitation statute allowing grandparent visitation violated the due process rights of parents to raise their children and determine whether they associate with their grandparent(s) or not.

In our practice, we see increasing numbers of grandparents as the primary caretaker for grandchildren especially as a source of child care. Young children sometimes spend more waking hours with their grandparent, even in an intact family, than with their parents who often have to work to support the family. As such, the bond between grandparent and grandchild is often strong.

When the family experiences a separation or divorce, a grandparent sometimes loses contact with their grandchildren through no fault of their own. This can be disruptive for the family and sometimes harmful to the minor child who experiences the disruption and instability of a change of child care provider. We are often asked what rights the grandparent has, if any.

In North Carolina, a grandparent has the right to claim custody and/or visitation with their grandchildren under certain circumstances, even over the objection of one or both parents. There are four statutes that permit a grandparent to maintain an action for custody or visitation of their grandchild; these are:

1. Action or proceeding for custody of minor child (N.C. Gen. Stat. §50-13.1(a)) — “Any parent, relative, or other person, agency, organization or institution claiming the right to custody of a minor child may institute an action or proceeding for the custody of such child, as hereinafter provided.”
2. Who entitled to custody; terms of custody; visitation rights of grandparents; taking child out of State (N.C. Gen. Stat. §50-13.2(b1)) — “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. As used in this subsection, “grandparent” includes 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….”
3. Action for visitation of adopted grandchild (N.C. Gen. Stat. §50-13.2A) — “A biological grandparent may institute an action or proceeding for visitation rights with a child adopted by a stepparent or a relative of the child where a substantial relationship exists between the grandparent and the child. Under no circumstances shall a biological grandparent of a child adopted by adoptive parents, neither of whom is related to the child and where parental rights of both biological parents have been terminated, be entitled to visitation rights. A court may award visitation rights if it determines that visitation is in the best interest of the child…”
4. Procedure in actions for custody or support of minor children (N.C. Gen. Stat. §50-13.5(j)) — “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 used in this subsection, “grandparent” includes 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. Under no circumstances shall a biological grandparent of a child adopted by adoptive parents, neither of whom is related to the child and where parental rights of both biological parents have been terminated, be entitled to visitation rights.”

As between parents, custody and visitation are generally treated by the courts as the same bundle of rights (with the exception of sole custody wherein visitation is clearly a distinct and separate right). However, with respect to grandparents’ rights, the court have clearly distinguished custody from visitation. Custody is much harder to obtain because our courts acknowledge that a parent has a fundamental right consistent with Troxel to control with whom the child associates.

Grandparents seeking visitation

A grandparent has the right to claim visitation with the child when he or she can intervene in an ongoing child custody case or the family is not “intact.” When there is an ongoing child custody case, a grandparent may intervene in the proceeding and file suit for custody or visitation. See Sharp v. Sharp, 124 N.C. App. 357, 477 S.E.2d 258 (1996). Often, a grandparent will file a motion to intervene shortly after one parent sues for custody simply to preserve their visitation rights with the child in the event that their son or daughter dies before the child becomes an adult. When one parent dies, sole custody is usually vested in the living parent by operation of law. A grandparent does not have standing to sue for visitation upon a parent’s death. See Price v. Breedlove, 138 N.C. App. 149, 530 S.E.2d 559 (2000); Montgomery v. Montgomery, 136 N.C. App. 435, 524 S.E.2d 360 (2000). In fact, the Troxel case out of Washington State was initiated after one parent died.⁵

It is critical to file the motion to intervene before the case is resolved. A case is resolved through a settlement agreement or court order. Once the case is resolved through a settlement or permanent child custody order, there remains no ongoing case and the grandparent may not intervene to seek visitation.

Also, once the parties separate, a child living with his or her parent can constitute an “intact” family such that the grandparent does not have grounds to intervene for visitation. See Eakett v. Eakett, 157 N.C. App. 550, 579 S.E.2d 486 (2003). The grandparent may have to wait to file an action for visitation when one of the parents brings an action for child custody and re-opens the custody matter.

In determining whether visitation will be granted, the court will hear evidence concerning the child’s bond with the grandparent, the amount of time spent together, the amount of care provided for the child by the grandparent and other evidence.

Grandparents seeking custody

In general, a grandparent has a right to custody when he or she can show that both parents are unfit or have acted inconsistent with their constitutionally protected status as the child’s natural parents. The grandparent cannot win custody merely by showing the grandchild would be better served in the grandparent’s custody or that it is in the best interests of the child. The grandparent must show that the parents are&nbps;not suitable parents or misconduct rising to the level of an abrogation of their constitutional rights. Parents are presumed to be appropriate custodians of their children and a grandparent has the burden of proof to show otherwise.

Examples of reasons for determining a parent unfit or has acted inconsistent with their constitutional rights may include drug use, substance abuse, alcoholism, child abuse, child neglect, abandonment of the child, voluntary relinquishment of custody even if temporary under some circumstances, failure to care for the minor child or provide support, among other reasons.

If both parents are determined to be unfit or have acted inconsistent with their constitutional rights, the trial court will determine custody of the child using a best interests test.

Legal procedure in grandparent custody cases

The legal procedure in grandparent custody cases is quite complex. Pleadings must state specific grounds for claiming visitation and/or custody. If the motion or complaint fails to include all of the proper elements, it may be dismissed by the Court for failure to state a claim upon which relief may be granted. See Eakett v. Eakett, 157 N.C. App. 550, 579 S.E.2d 486 (2003). As a result, it is strongly recommended that grandparents enlist the aid of an attorney who routinely practices family law to assist them with a grandparent child custody or visitation matter.

Aftermath

If the grandparent successfully obtains an order allowing custody or visitation, it is possible for grandparents to remain a part of their grandkids’ lives whether the parent(s) desire this or not.

Laws on grandparents’ rights vary from state to state. Other states, however, will generally give full faith and credit to a North Carolina court order as a result of the Parental Kidnapping Prevention Act in 1980, which requires that each state give full faith and credit to child custody decrees from other states. Also, the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), adopted by most states, requires courts in the state where a child resides to recognize and enforce valid child custody orders from another state.