Grandparents’ Custody and Visitation Rights

Grandparents do have rights when it comes to custody and visitation with their minor grandchildren. However, it is important to note that North Carolina law distinguishes between custody and visitation, and provides a different burden to meet for each. For purposes of this article, visitation means spending time with a child, which may include overnight visits, but the child continues to reside primarily with someone else. Custody means you are seeking to have the child reside with you, preferably a majority of the time.

In order for a grandparent to have standing to seek visitation with a child, there must already be an ongoing custody action. This could be an action for custody between the mother and father of the child, or an action by an agency (such as the Department of Social Services) against the parents. Grandparents do not have standing to initiate an action for visitation where there is an intact family and custody is not at issue. For purposes of North Carolina law, a single parent and his or her child is considered an intact family.

A grandparent may seek custody of a child in circumstances where the parents are unfit or have taken actions which are inconsistent with their constitutionally protected parental status. Parents have a superior right to raise their children the way they see fit; however, this is not an absolute right and courts will intervene when a child is not being properly cared for. Unfitness is a very high burden to meet and while it is determined on a case-by-case basis, unfitness generally means that the parents have demonstrated a failure to exhibit reasonable responsibility for the child’s welfare.

The second prong of this analysis having to do with a parent taking actions which are inconsistent with his or her constitutionally protected status is a bit more complicated. Examples of this are: a parent voluntarily placing his or her child in the custody of a non-parent for extended periods of time, voluntarily conferring parenting rights and responsibilities on someone who is a non-parent, etc.

Grandparents do have rights regarding custody/visitation of minor grandchildren, but before initiating such an action, it is important to ensure you have the requisite standing to make the claim.

Blog written by Courtney Smith

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