Grandparents are special to children; they provide endless love, admiration, and cookies. Under North Carolina law, a grandparent includes a biological grandparent of a child, a step-grandparent when the stepparent has adopted the child, or a relative of the child where a substantial grandparent-like relationship exists between the relative and the child.
When custody of a child is challenged, there is a presumption in North Carolina that the parent is favored over a third party for the award of custody. In fact, parents have a constitutionally protected right to the care, custody, and control of their children. As the US Supreme Court has said, “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” This is a challenging hurdle to overcome when someone other than a parent would like custody of a child, an obstacle many grandparents face when asking the court for custody of their grandchild.
The presumption in favor of the parent for custody can be overcome if a grandparent can show that the parent has acted inconsistently with his or her constitutionally protected status of a natural parent, by proving allegations of abuse, neglect, or overall unfitness against the parent. This is often the case when a grandparent seeks custody of a minor child whose parent is battling drug addiction or is otherwise unable to care for the child due to financial difficulties, mental health issues, or incarceration. If there are no allegations of a parent being unfit for custody, a grandparent may still be able to seek custody if there is a relationship resembling one of a parent-child. For example, the grandparent provides transportation for the child, spends time with the child, financially provides for the child, and is overall involved in the day-to-day activities with the child.
Without the presence of unfitness or the parent-like relationship, a grandparent still may be able to be awarded visitation with the minor child. Once again, there is a presumption that natural parents have the right to determine who the child associates with. An order for custody may provide for visitation rights for grandparents in the courts discretion. When assessing whether to award such visitation, the court will balance the right of the parent to decide who sees the child, as well as whether or not it is in the best interest of the child for visitation to be granted. If there is a substantial relationship between grandparent and child, the court is more likely to award visitation.
It is important to note that there must be an on-going action for custody, and grandparents cannot seek visitation when the children are living in an intact family. Additionally, many grandparents attempt to seek visitation with grandchildren after their own child has passed away. Unfortunately, the only way the grandparent will be successful in doing so through the court system in North Carolina is if the court has already recognized custodial rights for those grandparents. Whether seeking legal custody/visitation with grandchildren or not, grandparents play an important role in their grandchildren’s lives. Grandparents can be a resource for the family and a reminder to the children that they have a family that loves them when situations such as separation and divorce disrupt normal living conditions. Thank goodness for grandmas and grandpas!
Sarah J. Hink
New Direction Family Law