In North Carolina, there are four separate statutes that allow for grandparents to pursue visitation privileges with a grandchild, or legal and/or physical custody of a grandchild. Grandparents DO NOT have the right to interfere and seek custody of a grandchild when that grandchild is living with both parents in an intact family unit.
Pursuant to N.C. Gen. Stat. § 50-13.2(b1), if the parents of a child separate AND either parent files a legal action for child custody, a grandparent may petition the court to intervene and become a party to the action for purposes of seeking visitation privileges with the grandchild. The court further has to find that the intervening grandparent has a “substantial relationship” with the grandchild AND that visitation with the grandparent is “in the child’s best interest.” An interested grandparent has to time the filing of any petition to intervene at an appropriate time in litigation.
N.C. Gen. Stat. § 50-13.5(j), provides that either parent of a child or an interested party (which could be a grandparent) may petition the court for a modification of child custody or visitation in any action in which custody previously has been determined. The grandparent must be able to show that a “substantial change in circumstances affecting the welfare of the child” has occurred since the entry of the prior custody order.
In some circumstances, N.C. Gen. Stat. § 50-13.1. allows for a grandparent to have grounds to pursue legal and/or physical custody of a grandchild. This statute provides authority for a grandparent to be awarded legal and/or physical custody of a grandchild if the court finds that the parents are “unfit,” or have “acted inconsistently with his and/or her constitutionally protected status as a parent.” Proving parents unfit can be an extremely difficult process; however, proving the parents have “acted inconsistently with his and/or her constitutionally protected status as a parent,” can be proven easily if the grandparents have historically cared for the grandchild with the knowledge and consent of one or both natural parents.
When a grandchild is adopted by a stepparent or other relative, N.C. Gen. Stat. § 50-13.2A entitles a grandparent to initiate proceedings to pursue visitation with a grandchild. The grandparent must be able to the grandchild and grandparent have a substantial relationship. Termination of the parental rights of parents will limit a grandparent’s right to request visitation.
Child custody actions can become more complicated when custody or visitation is between a parent and a nonparent third party. North Carolina law has a long-standing recognition that parents have a constitutional right to provide parental care of their child. It has been legally presumed that parents are in the best position to generally determine how to promote the best interests of their child. Substantial litigation over the last two decades throughout North Carolina and the United States, has been brought to deal with custody issues involving parents and nonparent third parties. There are certain situations that will allow North Carolina courts to award legal and/or physical custody of child to a nonparent third party even though a parent may object. Parker Law, PA can help navigate this complicated and emotionally-charged area of Family Law.