Methinks North Carolina’s Grandparent Visitation Statute is Unconstitutional

North Carolina has two statutes that allow a grandparent to seek visitation with their grandchild, N.C. Gen. Stat. § 50-13.2(b1)) and N.C. GEN. STAT. § 50-13.5(j).  N.C. Gen. Stat. § 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…”  N.C. GEN. STAT. § 50-13.5(j) provides 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.”

While no North Carolina court has ever considered the constitutionality of these statutes, they appear to violate both Federal and North Carolina constitutional restrictions and limitations as related to the constitutionally protected rights of parents as enumerated in Troxel v. Granville, 530 U.S. 57, 70, 120 S. Ct. 2054, 2062, 147 L. Ed. 2d 49 (2000); Price v. Howard, 346 N.C. 68, 73, 484 S.E.2d 528, 531 (1997); Petersen v. Rogers, 337 N.C. 397, 403-04, 445 S.E.2d 901, 905 (1994) and the line of cases that follow.

Troxel v. Granville is a United States Supreme Court case decided in the year 2000 that originated from the State of Washington.  It involved the mother, Tommie Granville, and father, Brax Troxel, of two daughters, Isabelle and Natalie, and Brad’s parents.  After Brad committed suicide in 1993, Tommie refused to allow Brad’s parents to visit with their grandchildren and the grandparents brought a lawsuit for grandparent visitation.  The United States Supreme Court ultimately decided that Washington States’ grandparent visitation statute was unconstitutional because it violated the mother’s constitutional due process right to make decisions regarding the care, custody and control of her daughters.    In essence, parents who are fit and proper parents have a constitutional right to determine with whom their children may associate and that includes grandparents.

Due Process Requires a Clear & Convincing Evidentiary Standard to Deprive a Fit Parent of Their Right to Determine With Whom Their Child May Associate

Troxel held that a Court must give “special weight” to a fit parent’s decisions restricting or denying grandparent’s visitation with their child. Troxel, 530 U.S. at 70 (2000).  Troxel cited Santosky in its reasoning but failed to provide the standard of review for grandparent visitation cases.  In fact, Justice Thomas criticized the failure to articulate the proper standard and suggested that strict scrutiny would be required.  Troxel, 530 U.S. at 80 (2000).  The United States Supreme Court has found that the due process requirements of the Constitution requires that the “clear and convincing evidence” standard be utilized before terminating a parent’s rights.  Santosky v. Kramer, 455 U.S. 745, 769 (1982). Since North Carolina grandparent visitation statutes seek to abrogate the parent’s constitutional rights to determine with whom their child(ren) may associate, “clear and convincing” evidence should be required.  However, the statute fails to require the higher burden of proof.

In a normal child custody case, “greater weight” or “preponderance of the evidence” is the evidentiary standard that is used.  Clear and convincing proof is a higher standard of evidence that means that the evidence presented by a party during a trial must be highly and substantially more probable to be true than not and the trier of fact must be fully convinced of its factuality.

A number of states have found that due process requires the higher evidentiary standard of clear and convincing evidence to support an award of grandparent visitation.  Solangel Maldonado, When Father (or Mother) Doesn’t Know Best: Quasi-Parents and Parental Deference After Troxel v. Granville, 88 Iowa L. Rev. 865, 885 (2003); In re Adoption of C.A., 137 P.3d 318, 327 (Colo. 2006); Sheppard v. McCraney, 730 S.E.2d 721, 722 (Ga. Ct. App. 2012); Hamit v. Hamit, 271 Neb. 659, 675, 715 N.W.2d 512, 526 (2006).

The North Carolina grandparent visitation statutes, and North Carolina case law related to those statutes, do not appear to set an evidentiary standard with respect to grandparent visitation and it does not appear that our appellate courts have addressed what evidentiary standard is required to award grandparents visitation.  The mere omission of this standard should allow an appellate court to find the statute unconstitutional.

North Carolina’s Statute is Facially Unconstitutional As It Requires No “Special Weight” Be Given to a Fit Parent’s Wishes

The United States Supreme Court found that “if a fit parent’s decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent’s own determination.” Troxel v. Granville, 530 U.S. at 70 (2000) (Emphasis added).

Grandparent visitation decisions increasingly reflect a recognition that visitation should not be awarded over the objection of a fit parent.  Joan Catherine Bohl, Grandparent Visitation Law Grows Up: The Trend Toward Awarding Visitation Only When the Child Would Otherwise Suffer Harm, 48 Drake L. Rev. 279, 280 (2000).

“The majority of courts have held that, under Troxel, courts must apply a presumption that the parent’s decision to deny or curtail visitation is in the child’s best interest.”  Maldonado, Supra, at 883.

Arkansas, Colorado, Illinois, Indiana, Maryland, Montanna, New Mexico, South Dakota, and Tennesee have established the presumption that a fit parent’s decision in denying or limiting grandparent visitation is in the best interest of the minor child.  ARK. CODE ANN. § 9-13-103 (2012);  In re Guardianship of A.L.C., 902 N.E.2d 343, 356 (Ind. Ct. App. 2009); In re Adoption of C.A., 137 P.3d 318, 327 (Colo. 2006); In re Pfalzgraf, 378 Ill. App. 3d 1107, 1110, 882 N.E.2d 719, 721 (2008); Barrett v. Ayres, 186 Md. App. 1, 17, 972 A.2d 905, 914 (2009); Polasek v. Omura, 332 Mont. 157, 136 P.3d 519, 521–22 (2006); Deem v. Lobato, 2004-NMCA-102, 136 N.M. 266, 271, 96 P.3d 1186, 1191; Beach v. Coisman, 2012 S.D. 31, 814 N.W.2d 135, 138; Hawk v. Hawk, 855 S.W.2d 573, 577 (Tenn. 1993).  Other states at least require the court to give special weight to the opinion of a fit parent regarding grandparent visitation.  In re McClean, 4 A.3d 423, 430 (Del. Fam. Ct. 2010).

While North Carolina applies the parental preference presumption in custody decisions regarding a fit parent over a third party, North Carolina does not have such a requirement as to grandparent visitation.  Brewer v. Brewer, 139 N.C. App. 222, 229-231, 533 S.E.2d 541, 547-548 (2000); Cf. McIntyre v. McIntyre, 341 N.C. 629, 634, 461 S.E.2d 745, 749 (1995) (holding that “custody” and “visitation” are not synonymous as to grandparents in North Carolina). Instead, North Carolina uses the intact family and on-going custody dispute rule with respect to grandparent visitation. See, e.g., Eakett, 157 N.C. at 551-553, 579 S.E.2d at 489 (2003). However, this standard gives no special weight or credence to a fit parent’s preferences regarding grandparent visitation in contradiction to Troxel. Id.

The practical effect of not providing special weight to a fit parent’s preferences regarding grandparent visitation is that the fit parent’s constitutional rights are eroded through no fault of his or her own or that a simple custody action between two fit parents can give rise to a loss of both parent’s right to determine with whom their children associate.

As such, N.C. GEN. STAT. §§ 50-13.2(b1) and 50-13.5(j), both of which are devoid of any instruction from the Legislature to consider a fit parent’s preference regarding their child visiting a grandparent is facially unconstitutional.

Grandparents Should Be Required to Prove Some Harm to the Minor Child to Invade the Fit Parent’s Constitutionally Protected Status

Some have argued that the only compelling justification to intrude upon a parent’s Fourteenth Amendment constitutional rights arises only when children would otherwise be exposed to a threat of serious harm.  Bohl, Supra, at 284.  Several states have adopted this approach.  Florida, Georgia, New Jersey, Oklahoma, and Texas require that the grandparent prove some harm to the child if visitation is not granted before the privacy right of the parent to raise a child without government intrusion.  Forbes v. Chapin, 917 So. 2d 948 (Fla. Dist. Ct. App. 4th Dist. 2005); New Jersey Div. of Youth & Family Services v. P.W.R., 205 N.J. 17, 39, 11 A.3d 844, 857 (2011); In re Herbst, 1998 OK 100, 971 P.2d 395, 399 (1998); Sheppard v. McCraney, 730 S.E.2d 721, 722 (Ga. Ct. App. 2012); Tex. Fam. Code Ann. § 153.432 (2011).

When a grandparent visitation statute fails to require there be proven harm to the minor child justifying visitation during the fit-parent’s custodial time, or fails to at least consider the wishes of a fit parent as against a grandparent, then it should be deemed to fail constitutional muster and invasion of the fit parent’s constitutionally protected status should be prevented.

At this point, North Carolina’s appellate courts have not addressed the constitutionality of these statutes.  While methinks them unconstitutional, the opinion of the author is merely that and our court’s will continue to operate under the statute until these statutes are challenged at the appellate level.

NOTE: Consult a licensed attorney in your jurisdiction for legal advice concerning this topic.  This article is the opinion of the author and does not constitute legal advice.  Since no North Carolina appellate court has decided this issue, the constitutionality of the statutes in question are unknown.  This article makes a clear distinction between North Carolina’s statutes which allow grandparents to seek child custody (which the author believes are constitutional) and those which allow grandparents to seek visitation (which the author believes are not constitutional as written).  These statutes could be easily “corrected” even if unconstitutional by requiring the trial court to make findings under clear, cogent and convincing evidence and by considering and giving “special weight” to the wishes of a fit and proper parent before granting visitation.