Grandparents are inarguably a vital part of a child’s life, but the decision to include them is ultimately up to the parents. It can be devastating for grandparents when contact with their grandchild has been restricted. What are your options as a grandparent for seeking court-ordered visitation in North Carolina?
If the family is intact and there is no custody issue, grandparents cannot file for visitation rights in North Carolina.
Biological parents have a constitutional right to care for their children in North Carolina. Further, case law has determined that parents have the right to decide who their children will spend time with and otherwise associate with. To overcome this parental right, grandparents must show that the parent or parents are unfit or have acted in a way that is inconsistent with this parental right.
Even though North Carolina prioritizes a child’s best interest when determining custody, a grandparent cannot be considered in this criteria unless they first overcome the parent’s constitutional right.
In the case of Rose v. Powell, Grandparents filed for secondary custody, or visitation rights, of their granddaughter Audrey. The child’s mother filed a motion to dismiss, among other pleadings. The trial court granted Mother’s motion to dismiss, and Grandparents appealed.
Grandparents claimed that the trial court incorrectly dismissed their claim for secondary custody because Mother had acted inconsistently with her constitutionally protected parental right. They also asserted that Mother’s family being intact did not prevent them from seeking visitation rights.
The child’s father, who was Grandparents’ son, passed away before the child was born. After the child was born, Grandparents spent a significant amount of time with her and Mother. Approximately two years later, Mother stopped contact with Grandparents, and they no longer were able to visit with Audrey.
Grandparents argued that their established relationship with their granddaughter and their son’s death meant they had the right to seek visitation. They stated that Mother acted inconsistently with her parental rights by making Grandparents an integral part of the child’s life and then suddenly ending the relationship. The Court of Appeals disagreed with this argument, stating that the relationship created between Mother, Grandparents, and child did not create a family unit in which Grandparents were established as or expected to act as parents to the child.
The appellate court also determined that the child’s family unit being intact was relevant to the case and that Grandparents had no legal right to file for visitation. The trial court’s decision to dismiss Grandparents’ visitation petition was affirmed.