If you and your child(ren)’s parent(s) are no longer together consider doing some of the following on Mother’s Day:

And now it is nearly always included in child custody orders honoring mom as a day that mom gets to enjoy with her child(ren) regardless of where the child(ren) normally lives.   Many child custody court orders will include language such as the following:

Mother’s Day (2nd Sunday in May)

Even if a period of Secondary Custody falls on or includes Mother’s Day, the children shall be returned by their father to the custody of their mother at 5:00 p.m., on the Saturday before Mother’s Day and the children shall remain in mother’s physical custody until they return to school on the Monday following Mother’s Day.

 So it is critical that child(ren) spend time with their mother on mother’s day unless prohibited by a court order.

There are very rare instances when a mother does not enjoy mother’s day with her child(ren).  Woe unto a father who prevents a mother from spending time with her children in violation of a court order which grants her Mother’s Day.  Most judges are likely to punish the father under these circumstances with contempt of court unless they have a compelling  justifiable reason for failing to comply with the custody order.

The law on relocation differs depending on whether a child’s custody has been litigated, and whether a child’s custody is addressed in a Separation Agreement. If the parties have not litigated issues related to their child and do not have a Separation Agreement, it is possible to relocate immediately inside or outside of North Carolina prior to litigating custody and/or child support. If the new location is in another state, consult an attorney in that state for advice on how much time you must reside there before filing a custody action. Generally, a person is also allowed to take their child and move immediately to a new location if domestic violence is involved.

If parents have litigated custody or have a Separation Agreement, and relocation is not agreed to by both parents, an attorney will likely file a Motion to Modify Visitation or Custody. There are several recent North Carolina cases involving these motions, essentially requesting the court’s permission to relocate. The parties in these North Carolina cases had different reasons for requesting that the court grant their motions, but a similar test was applied by the courts in the cases. The courts considered the child’s best interests to determine whether to modify custody or visitation. A court might also refuse to modify a prior Order unless a substantial change of circumstances has occurred; however, a move for employment reasons is likely a substantial change of circumstances. Based upon these cases, a court will likely use several factors to determine the child’s best interests. These factors include:

…the advantages of the relocation in terms of its capacity to improve the life of the child; the motives of the custodial parent in seeking the move; the likelihood that the custodial parent will comply with visitation orders when he or she is no longer subject to the jurisdiction of the courts of North Carolina; the integrity of the noncustodial parent in resisting the relocation; and the likelihood that a realistic visitation schedule can be arranged which will preserve and foster the parental relationship with the noncustodial parent.

—Evans v. Evans, 138 N.C.App. 135, 142, 530 S.E.2d 576, 580 (2000).

If a North Carolina trial court uses these factors to determine the child’s best interests its decision is more likely to be upheld on appeal.

A court also has the discretion to reduce child support payments in a case involving relocation. If a court allows relocation of a parent and child, that court will have possibly held that a substantial change of circumstances occurred. As a result, that court may not only modify custody, the court may also modify child support. A court can increase or decrease child support, and a court can deviate from the North Carolina child support guidelines. For instance, a court might suspend a parent’s child support obligation so that the non custodial parent can visit the child in the new location.

Preparation is important when attempting to relocate. It is wise to first consult the other biological parent, and to memorialize any agreement in writing, at which time an attorney can draft a consent order or modification of a Separation Agreement as appropriate. If no agreement is reached, consult an attorney to prepare a Motion to Modify Visitation or similar action, and also consider child support. In all cases, your ability to relocate will depend on what is in the best interests of your child.

In child custody cases, judges are required to consider the best interests of minor children and their safety. Allegations of substance abuse — of any nature including but not limited to abuse of alcohol, illegal drugs, prescription drugs, etc. — must be taken seriously. When allegations of substance abuse appear to be supported by evidence, the Court will often order drug testing to verify whether substance abuse is a problem. In making the determination whether to order drug testing, the judge will consider the credibility of the testimony, whether the party admits to substance abuse, past history including criminal charges for drug use, other evidence and risk/danger to the child. Since inaccurate accusations are common, some judges are reluctant to order testing based upon a mere accusation of substance use/abuse. Outside corroboration is often best obtained through affidavits of eye-witnesses of through the use of a private investigator.  Private investigators like Cape Fear Investigative Services can perform trash pulls and look for evidence of drugs and even swipe door handles to test for drug residue.

Nationally, about 21.2% of adults age 18–25 use illicit drugs according to the Substance Abuse and Mental Health Services Administration.  Of adults 26 years of age or older, about 6.3% use illicit drugs but nearly 20% of adults age 26–34 report binge drinking. Rates of marijuana use in nearly every age group is on the rise. Statistically, males are more likely to be drug users than females and drug use is also higher among those unemployed. See the complete 2009 results.

A judge can order the cost of drug testing be paid by either party and is in the discretion of the Court. The type of drug testing is also in the discretion of the court. A urine screen is quick and relatively inexpensive but is easily subject to manipulation of results (e.g., drinking large amounts of water in advance of the test) and the look back period is very limited often to less than one week. A hair follicle test is more expensive but often provides much better results over a longer period of time. And a test of a fingernail is even better for some purposes.  We often use ARCpoint in Wilmington, NC for drug testing results.

When a party has a problem with drugs, the best approach is to get a substance abuse assessment and follow the treatment recommendations — even in-patient treatment if needed. By showing a pattern of recovery, the party is best able to convince the Court that the problem is admitted, is being addressed and that management of the problem is on-going.

Mental health experts can also perform a substance abuse assessment and often use the Substance Abuse Subtle Screening Inventory (SASSI) as one mechanism to help identify individuals with a high probability of having a substance dependence disorder.

When dealing with accusations of substance abuse in a child custody case, it is important to have legal counsel and a plan of action in place to refute false accusations or embrace true accusations and put a safety plan in place that allows the parties to have quality time with their children.

As one might have guessed Eunice H. Chapman did not have the same legal standing and property rights as women have in modern society.  When Eunice married James Chapman she lost her property rights and legal standing as an individual. As a result, when her husband attempted to reconcile only to be rebuffed by Eunice, her husband took the remaining property and their three children to the Shaker religious group. 

It is worth pointing out that Eunice did not want to reconcile for a couple of reasons. First, James was notorious for drinking and wasteful spending, leading to him selling much of the couple’s property before abandoning his family. Second, James claimed to have changed and wanted to live in Shaker society in which the couple would not live together alone as Husband and Wife. Eunice was not interested in the type of life offered by Shaker society, and this refusal set off the battle between Eunice and the Shaker religious leaders of James’ group.

These events leading to Eunice’s extraordinary acheivement are very interesting. At first, Eunice maintained custody of her three children until her husband and the Shaker leaders lured Eunice away from her home and then removed her children and the remaining property from the home. For a couple of years Eunice attempted to settle custody with the Shaker leaders, without success.  Eunice was determined to get her divorce and custody so she sought the assistance of the New York legislature. Around 1817, after years of talking in person and writing to the NY assemblymen, Eunice was given a “legislative divorce” from her husband, and no actual trial occurred. Even Thomas Jefferson noticed and commented on Eunice’s case. 

Eunice may have received her divorce, but she did not have custody of her children yet. She reportedly resorted to gathering a mob to go to the Shaker group that had possession of her three children. Again, Eunice remarkably overcame the religious leaders by getting her three children back.

New York law later changed around 1966 so that a divorce was not solely dependent on proving adultery.  In the majority of states the law is either based on a “no fault divorce”, or the divorce law is dependant on a period of separation, as in North Carolina.  However, religion does still play a role in some custody disputes. (For more information see Richard Kern’s Article: Custody and Religion). 

The current news is full of interesting court cases about marital rights, multiple marriages, and interstate custody battles, but Eunice H. Chapman’s remarkable legal battle is truly noteworthy. Litigants in 2010 are understandably frustrated by the amount of time required to get a divorce, but their divorce and custody matters usually only last one to two years. In light of the many years spent in pursuit of Eunice H. Chapman’s legislative divorce the modern legal system has come a long way.

Generally, Joint legal custody means that the two parents consult and decide together what long-term decisions are in the best interest of their child. It is assumed in North Carolina that a fit parent makes decisions that are in their child’s best interest. In a sole custody situation, the parent enjoying sole custody has the authority to make such decisions. In North Carolina, a Court may delegate certain areas and topics regarding decision-making authority to a particular parent, even in the context of joint legal custody. However, according to some North Carolina case law, if a Court delegates all decision-making authority to a single parent, then North Carolina Courts will consider the parent with sole decision-making authority to be in sole custody of the child despite language in the child custody order purporting to convey joint legal custody. These concepts are important for parents to understand because in many joint custody arrangements disagreements arise as to what is in the child’s best interest with regard to their spiritual upbringing.

A North Carolina Court may inquire as to the religious practices of parents to determine the effect of certain religious practices with regard to the physical, mental, and spiritual health of a minor child and may use the information gained as a factor in determining which custody arrangement will best promote the best interests of a child so long as the inquiry is: a limited inquiry related to the impact that the practices of the religion have upon the child and/or the parents’ ability to promote attendance or instruction in a religion. This information may be used as one factor in determining the custody arrangement that serves the child’s best interest so long as the Court does not preference any particular faith or religious instruction in making their determination. Phelps v. Phelps, 337 N.C. 344, 446 S.E.2d 17 (1994).

In Dean, the Court of Appeals stated the “trial court properly considered wife’s failure to take five-year-old child to church and Sunday school, and consideration of such fact did not violate constitutional provisions concerning separation of church and state.” Dean, 32 N.C.App. at 483.

In MacLagan, the North Carolina Court of Appeals went further by declaring proper the decision of the trial court that the father of a child have exclusive decision-making authority over his child’s religious upbringing. The Court of Appeals overcame the mother’s argument that the trial court had shown religious preference in allowing the father (who was Jewish) to be the sole decision-maker as to the child’s religious upbringing as opposed to the mother (who was Christian) by citing the undisputed facts in the trial Court’s record that: 1) the parties had agreed to raise the child in the Jewish faith before they separated; 2) the child was raised in Judaism since the age of three; 3) the child had substantial involvement in her father’s Synagogue; and 4) the child had increased stress and anxiety due to her being raised in two conflicting religions “which have had a detrimental effect on [the child’s] emotional well-being.” MacLagan, 123 N.C.App. at 569-570.

It is noteworthy that the cases cited above, in large part, contain dicta and language to suggest that the inquiry into religious practices may not be the sole determinative factor in either custody or in delineating certain areas of the decision-making authority with regard to spiritual well-being, most of the cases above point out specifically that the trial court did not rely solely on the inquiry into religious practices to make their determination.

Another interesting potential situation regarding this topic is what should a Court do when a child desires to make his/her own decisions regarding their own religious upbringing.

The Constitutional rights of children have been acknowledged by courts all over the United States in a growing number of cases over the last couple decades. Children have protected Constitutional rights with regard to: their religious beliefs, expression, privacy, procedural due process in criminal and civil matters, and even with respect to double jeopardy. However, most of the United States Supreme Court cases recognizing the Constitutional rights of children involves a conflict between a child and the State/government and does not relate to a child’s Constitutional rights in relation to the conflicting rights of a parent. It is likely that a child may not even have standing to contest their parent’s decisions with regard to religious upbringing in most foreseeable situations as the conflict would likely not have a basis in governmental action which would be a necessary element for any Constitutional challenge.

It is well-established that fit natural parents have a Constitutionally protected right to raise their child as they see proper, including but not limited to deciding with whom that child associates. Petersen v. Rogers, 337 N.C. 397, 445 S.E.2d 901 (1994). In Wisconsin v. Yoder, 406 U.S. 205 (1972), the United States Supreme Court specifically avoided the question as to conflicting Constitutional protections as between Amish parents and their children when the Court stated:

Contrary to the suggestion of the dissenting opinion of MR. JUSTICE DOUGLAS, our holding today in no degree depends on the assertion of the religious interest of the child as contrasted with that of the parents. It is the parents who are subject to prosecution here for failing to cause their children to attend school, and it [406 U.S. 205, 231] is their right of free exercise, not that of their children, that must determine Wisconsin’s power to impose criminal penalties on the parent. The dissent argues that a child who expresses a desire to attend public high school in conflict with the wishes of his parents should not be prevented from doing so. There is no reason for the Court to consider that point since it is not an issue in the case. The children are not parties to this litigation. The State has at no point tried this case on the theory that respondents were preventing their children from attending school against their expressed desires, and indeed the record is to the contrary. The State’s position from the outset has been that it is empowered to apply its compulsory-attendance law to Amish parents in the same manner as to other parents — that is, without regard to the wishes of the child. That is the claim we reject today.

Our holding in no way determines the proper resolution of possible competing interests of parents, children, and the State in an appropriate state court proceeding in which the power of the State is asserted on the theory that Amish parents are preventing their minor children from attending high school despite their expressed desires to the contrary. Recognition of the claim of the State in such a proceeding would, of course, call into question traditional concepts of parental control over the religious up-bringing and education of their minor children recognized in this Court’s past decisions. It is clear that such an intrusion by a State into family decisions in the area of religious training would give rise to grave questions of religious freedom comparable to those raised here [406 U.S. 205, 232] and those presented in Pierce v. Society of Sisters, 268 U.S. 510 (1925). On this record we neither reach nor decide those issues.

In Wisconsin, 406 U.S. 205, 230-231 (1972). However, Justice Douglas wrote in his dissent that that majority decision left the children under the yoke of the parents and that by not addressing the relationship between the constitutional rights of the parents and those of the children, the children’s constitutional rights were effectively abrogated by imposition of the parents religious views upon the children.

Under North Carolina law, the question of priority regarding a child’s Constitutional rights of free exercise of religion versus that of a parent seems unsettled as much as it is in the national context. The question is: at what point can a state enforce a child’s constitutional rights as against a parent’s right to raise their child?

In conclusion, North Carolina Courts may consider which parent is better suited to care for a child’s spiritual upbringing and may use this consideration as one factor in determining the custody arrangement that is in the best interests of the child. The Court may also order that one parent or the other have sole decision-making authority as to the child’s spiritual upbringing. However, it is unclear whether or to what degree courts may enforce a child’s wishes regarding their spiritual upbringing as against the decisions of their parents or parent.

Author’s Note: The above is presented as general information. It is not exhaustive coverage of this issue but only a general explanation from an attorney’s perspective. The purpose of this article is to inform the non-lawyer who may read current status of the issue in North Carolina. The reader interested in learning more should contact an attorney licensed to practice law in their jurisdiction.

The dependent spouse depends upon their supporting spouse to pay the bills for the food, home, etc., which can lead to a lack of control over their life. In the event the dependant spouse intends to separate from the supporting spouse, they should consult an attorney to learn about their many options. The options below are not exhaustive and will not apply to every situation.

In the event the supporting spouse will not leave the marital residence, the dependant spouse and children should seek a temporary home so that a Complaint and Motions can be filed after the parties separate. The temporary home may be required for a couple of days or months. Before leaving the residence, the dependant spouse should make copies of important documents, refrain from arguments, and limit computer activity. It is necessary to shut down social networking pages on the day you leave the residence, and take your computer to a shop to ensure that spyware was not installed by your spouse. However, the dependant spouse should leave immediately in a case of domestic violence and, in this situation, a local legal aid office and shelters for victims will usually provide free assistance.

In an attempt to provide stability to the dependant spouse and children, an attorney can file a complaint, motion for interim distribution, and motion for sequestration. In these documents an attorney can request that the dependant spouse be supported financially, and the Court can order that the supporting spouse be removed from the former marital residence so that the dependant spouse can return to the residence. The Court can order an interim distribution of marital and separate property pursuant to N.C. Gen. Stat. §50-20(i)(1) (Distribution by Court of Marital and Divisible Property), which provides as follows:

(i)(1) Unless good cause is shown that there should not be an interim distribution, the Court may, at any time after an action for equitable distribution has been filed and prior to the final judgment of equitable distribution, enter orders declaring what is separate property and may also enter orders dividing part of the marital property, divisible property or debt, or marital debt between parties.

For more information about equitable distribution, see the property settlement page on our Website.

se·ques·tra·tion [see-kwes-trey-shun], legal definitions:

1. Seizure of property.
2. A writ authorizing seizure of property.

The order for sequestration is similar to a temporary restraining order. It is a common law remedy that is used on a regular basis in this type of situation. A Judge can order the property to be sequestered with or without the presence of the supporting spouse or opposing counsel. It is highly recommended that the dependant spouse change the locks on the home as soon as they return to the former marital residence. If the supporting spouse returns to the former marital residence, the dependant spouse can request that the police enforce the Court’s Order and eject the supporting spouse from the property. Another option is to file charges for domestic criminal trespass, in which case the accused might be taken to jail. For more information about protective orders, see the domestic violence page on our Website.

A dependant spouse may choose to have an attorney prepare a separation contract or Separation and Property Settlement Agreement (SAPS). These two documents can settle some important issues. The agreement should attempt to maintain the status quo of the current child custody arrangement. For instance, the dependant spouse would maintain primary custody of the children throughout the week, while the supporting spouse visitation on some nights and every other weekend. The amount of custody and/or visitation of the supporting spouse will vary according to their work schedule. This type of custody arrangement can provide a stable environment for the children. Of course, the agreement should provide for interim financial support for the dependant spouse in order to provide a safe home and necessities for the children. The agreement can even contain a clause providing for “Temporary Possession of the Marital Residence.” See the sample separation contract on our Website.

These are a few of the legal options provided for stay-at-home parents and dependant spouses in North Carolina. To learn about additional options, get the free eBook on Separation & Divorce. In all of these cases the children’s best interests and safety should be the primary concerns of the parents.

The above is presented as general information on separation and interim distribution and sequestration. It is not exhaustive coverage of these issues but only a general explanation from an attorney’s perspective. Seek help from a licensed attorney for more information.

Richard Gardner, a clinical professor of psychiatry at Columbia University, coined the term “parental alienation syndrome” (PAS) in the mid 1980s. Gardner described a condition wherein a child was brainwashed or programmed by one parent through a “campaign of denigration” against the other parent that sometimes included a false sex-abuse accusation and automatic parroting of the brainwashing parent’s views. PAS arises primarily in the context of high conflict child custody disputes. Few mental health professionals considered it to be a mental health disorder and it has been highly criticized for a lack of scientific validity and reliability.

Parental alienation

However, parent alienation (PA), as opposed to PAS, has been widely recognized as a grouping of behaviors that often accompanies high-conflict marriages, separation and/or divorce. These behaviors can result in alienated children, alienated parents, and targeted parents. A child who strongly attaches to one parent (the alienating parent) and rejects the other (the targeted parent) in the false belief the targeted parent is bad or dangerous is a recognized problem.

The alienated child & symptoms of parental alienation

An alienated child may display characteristics including: unreasonable anger, intense negative portrayal of the target parent, lack of conflicting feelings toward parent, use of adult language by the child, and the child says things which appear rehearsed.

Dr. Douglas Darnell identifies symptoms of parental alienation including:

• Giving child a choice when they have no choice about visitation.
• Telling the child “everything” about the marital relationship or reasons for the divorce.
• Refusing to acknowledge the child has property and may want to transport possessions between residences.
• Resisting or refusing to cooperate by not allowing the other parent access to school or medical records and schedules of extracurricular activities.
• One parent blaming the other parent for financial problems, breaking up the family, changes in lifestyle, or having a girlfriend or boyfriend.
• Refusing to be flexible with the visitation schedule in order to respond to the child’s needs, or scheduling the child in so many activities that the other parent is never given the time to visit.
• Assuming that if a parent has been physically abusive with the other parent, it follows that the parent will assault the child. This assumption is not always true.
• Asking the child to choose one parent over the other.
• The alienating parent encouraging natural anger the child has toward the other parent.
• A parent or stepparent suggesting changing the child’s name or having the stepparent adopt the child.
• When the child cannot give reasons for being angry towards a parent or gives reasons that are vague and without any details.
• Using a child to spy or covertly gather information for the parent’s own use.
• Arranging temptations that interfere with the other parent’s visitation.
• Reacting with hurt or sadness to a child having a good time with the other parent.
• Asking the child about the other parent’s personal life.
• Physically or psychologically rescuing a child when there is no threat to their safety.
• Making demands on the other parent that are contrary to court orders.
• Listening in on the child’s phone conversation with the other parent (this is generally illegal in North Carolina).

These behaviors, whether conscious or unconscious, may cause a child to be mentally manipulated into believing the targeted parent is the enemy.

North Carolina’s recognition of parental alienation

Under North Carolina law, only two appellate cases mention PAS or PA. In Kilian v. Kilian, 175 N.C.App. 420, 623 S.E.2d 367 (2006), the father introduced a child care application which did not list him as a parent, but rather listed mother’s new husband as the child’s father/guardian as evidence of parental alienation. In a criminal rape case involving the rape of his daughter, Donald Fuller attempted to use evidence of parental alienation syndrome unsuccessfully in his criminal defense. See State v. Fuller, 160 N.C.App. 250, 584 S.E.2d 109 (1993).

Even though NC appellate courts have not fully addressed the PA issue, our trial courts here such evidence frequently. One district court judge in North Carolina recently wrote an article in which she detailed dialogues with children involved in custody disputes such as this one:

Judge: “Did you and your mother talk about coming to court today?”

Minor: “No.”

Judge: “Has your mother ever told you what this case is about, and what happens when she comes to court?”

Minor: “Well your Honor, I don’t think it would be in my best interest to have dinner with my dad. I realize there is a court order in place and that I cannot unilaterally change the order, but my mom should not be held in willful contempt for not making me go to dinner.”

Judge: “Now you’re sure you and your mom haven’t discussed this case?”

Call to action

If you suspect parental alienation, you need to take appropriate action. Even if your spouse or ex-spouse is acting badly, don’t talk to your child about any pending litigation and don’t allow your child to see any of your court documents. Talk to your child custody attorney and a licensed mental health professional about how to best handle the issue. At Rice Law, we often work with Denise Scearce, MSW, LCSW and Bridge Builders Counseling and Psychotherapy in Wilmington.

Resources

• Parental Alienation Awareness Organization
• Parental Alienation: A Mental Diagnosis?
• Symptoms of Parental Alienation, by Dr. Douglas Darnell, Ph.D.
• Hartsfield, Judge Denise S., Family Jewels: “Kids are to be seen, not heard” — Somebody’s grandmother in the 1960s. NC Bar Association’s Family Forum, Vol 30, #3, (2010).

The above is presented as general information on parental alienation syndrome and parental alienation. It is not exhaustive coverage of the issue but only a general explanation from a child custody attorney’s perspective. Seek help from a licensed mental health professional and an attorney for more information.

In some cases, “what the court givith, the IRS taketh away.” Depending on the language in certain court orders, this change in legislation may allow a custodial parent to revoke a dependency exemption despite what a state judge ordered in a divorce decree.

A recent review of the Internal Revenue Code revealed the change in 2008. The change in law is a result of court cases and comments from the public and tax professionals. A custodial parent is now likely able to release or revoke an exemption for a child from a noncustodial parent. According to the IRS website, “if the custodial parent provides notice of revocation to the noncustodial parent in 2009, the earliest tax year the revocation can be effective is the tax year beginning in 2010.” The IRS has also further clarified and modified its definitions of a custodial parent and noncustodial parent.

A revocation of a release will likely have federal and state tax implications for both parents. A custodial parent can revoke a previous release of an exemption on IRS form 8332. As a result, the noncustodial parent may be prevented from claiming the child exemption on their Federal return. Moreover, if the custodial parent revokes a release, the noncustodial parent may be prevented from claiming a child credit/deduction on their State return. Exceptions do exist to the new tax rules on release and revocation.

The change requires that the individual claiming an exemption attach specific paperwork to their tax return. The original tax form 8332, signed by the custodial parent, is usually required. Court cases have ruled that some previously acceptable documents are no longer accepted by the IRS in lieu of a signed form 8332. If a signed form 8332 is not available, noncustodial parents should immediately consult a tax professional to ensure they comply with the new requirements.

The IRS Web site, www.irs.gov, provides further explanation, definitions, and some examples.

IRS CIRCULAR 230 DISCLOSURE: Rice Law, PLLC does not provide tax advice. Accordingly, pursuant to requirements imposed by the Internal Revenue Service, any tax advice contained herein (including any attachments) is not intended to be used, and cannot be used, for purposes of avoiding penalties imposed under the United States Internal Revenue Code or promoting, marketing or recommending to another person any tax-related matter.

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.