Grandparents’ Visitation Rights

As a grandparent, you’re at risk to lose contact with your grandchildren in the event of a separation/divorce between your child and his or her spouse.  In situations where there is great animosity between the parents or between a parent and the grandparents, the grandparents’ opportunities to spend time with, communicate with, and be a part of their grandchildren’s lives may be in jeopardy.  In that situation, it’s imperative for the grandparents to take legal action to assure that their voices are heard, and they can have the right to have a relationship with their grandchildren.

In the event of a separation or divorce action pending between parents of the grandchildren, for grandparents interested in receiving visitation rights in Charlotte should consult with the family law attorneys at Weaver, Bennett & Bland. Contact our law office to schedule a consultation or for more information about the legal services we offer.

Seeking Visitation with Your Grandchildren in the Separation Agreement

When the parents of a child have separated and are undergoing negotiations to resolve their differences with a separation agreement, it is advisable that the grandparents seek some sort of visitation to be allocated to them in the resulting separation agreement.  If at all possible, the custody and child support provisions should be the subject of a “friendly” lawsuit, intervention motion and order and a Consent Order.  Since the parents are able to work out a separation agreement without resorting to litigation, the parent should be willing to place visitation rights of a minimal nature for both sets of grandparents in the separation agreement/consent order which would allow contact with the grandchildren in the future if the relationship between the parents disintegrates or one predeceases the other.

It is even more imperative to become involved in litigation between the parents if one of the parents files a lawsuit against the other for custody.  This is especially true when there is a history of animosity between the one parent and the grandparents or the separation has occasioned extreme animosity and indifference to the feelings of the grandparents.

In order to protect their rights, the grandparents must intervene in the initial custody action prior to the Court’s decision on custody to establish visitation rights with the grandchild(ren) in the event the relationship between a parent and the grandparents disintegrates.

Parents have a constitutional protected status in relation to the care, custody and control of their minor children. No third party, including a grandparent, has the right to tell an “intact” family with whom their children may or must associate.  An intact family is one where the parents live together or parent and child live together when the other parent is deceased or is a non-custodial parent in a custody order.  In the latter instance, grandparents may be lucky enough to see and contact their grandchildren when the grandchildren are with the noncustodial parent, usually, the grandparent’s child.  However, if there is an intact family consisting of a parent and child and the grandparents’ child has died, the grandparents do not have visitation rights.  It is possible that they will never see, talk to, or hear from their grandchild for many, many years if ever.

Grandparents’ Rights for Visitation in North Carolina

There are essentially four North Carolina Statutes that deal with the visitation rights of grandparents:  N.C.G.S. §50-13.1(a), §50-13.2(b1), §50-13.5(j), and §50-13.2(A).

50-13.1(a) is of very limited benefit in obtaining visitation.  It simply grants standing to a grandparent to sue for custody or visitation, albeit, subject to the protected status of parents  set forth in the seminal North Carolina Supreme Court cases of Petersen v. Rogers, 445 S.E.2d 901 (1994) and Price v. Howard, 484 S.E.2d 528 (1997).  50-13.2(b1) allows grandparent visitation to be included in “an order for custody,” usually in an order between the competing parents.  50-13.5(j) allows grandparents to intervene and seek visitation where a custody order is in the process of a modification.  This statute does not allow grandparents to file a motion to intervene if one party has died, since the action will have abated. 50-13.2A allows an order to be entered for grandparental visitation following a relative or step-parent adoption.  50-13.2(b1) is the statute that is the most important and provides the best protection to grandparents.

Pursuant to N.C.G.S. §50-13.2(b1), the grandparent’s right to intervene is absolute.  The Court of Appeals of North Carolina in the case of Wellons vs. White vs. Wellons, 748 S.E.2d. 709 (2013) has stated “When the custody of a child is still an issue and is being litigated by the parents, then the grandparents have standing to seek intervention under N.C.G.S. §50-13.2(B1).  Under N.C.G.S. §50-13.2(b1), grandparents need not prove lack of intact family since an ongoing parental custody dispute exists.  The trial court may award grandparent visitation in the subsequent custody order at its discretion.

Once the court grants the intervention (hopefully by consent of the opposing counsel) but sometimes after a hearing, the trial of the custody matter will take place.  The court must hear evidence with regards to whether or not a substantial relationship exists between the grandparents and the children.  If a substantial relationship exists, and an order allowing grandparent visitation is in the best interest of the minor children, the court should provide for visitation and contact with the grandchildren for the grandparents in its discretion.

It is good practice to set forth in the motion to intervene, the facts that the grandparents allege show that they have a substantial relationship with their grandchildren.  It is a lot of work; however, often it is enough to convince the opposing attorney that there is no reason they should oppose the motion to intervene and which, of course, if plead properly should be granted as a matter of right anyway.

The court need not provide much visitation at all to protect a grandparent’s rights.  In most instances, grandparents will see their grandchildren after the parents’ separation on occasion throughout the year.  Some of the occasions of contact may be with the parent who is not the child of the grandparents.  Usually however, the grandparents will see the children during the time that their child has the children in their care and control.  In the event that the grandparents’ child dies, however, prior to the grandchildren obtaining the age of eighteen (18) years, the grandparents with even minimum visitation of even one weekend a year may make a motion to modify a previous custody order under N.C.G.S. §50-13.5(j) and seek additional time.

In a recent case in Iredell County, a father was awarded ample visitation with the children.  The court knew that the relationship between the grandmother and her son, the father of the children was excellent and that the grandparents would see the grandchildren on a regular basis when the children were with father.  Therefore the court did not award specific visitation;  However, the court ordered that if something happened to father, that the grandparent would step into his shoes.

Grandparents have lost the ability to see, hear from, or talk to their grandchildren after a parent died if the court had issued a “permanent” custody order where the grandparents had previously not intervened.  The surviving parent did not have a good relationship with the grandparents and as an intact family decided to terminate all contact with the grandparents.  Grandparents have no right to intervene under those circumstances.  Rather, the court has indicated they should have intervened during the initial custody action.

Note that the North Carolina Court of Appeals has held that the grandparents, after having intervened in a case, have rights to have the court determine visitation even in the event the parents settle their case prior to the hearing of the action on custody/visitation.