When Can a Grandparent File for Visitation in North Carolina?

Extended family members often play an important role in a child’s life. The bond that children share with people such as their grandparents contributes to their development, but it is generally a parent’s decision as to which relationships their children can have.

In North Carolina, parents have a right to determine who their children will spend time with and associate with. This means that non-parents, like grandparents, cannot file for visitation unless certain criteria are present.

Court-Ordered Visitation for Grandparents

North Carolina law does not grant visitation to grandparents based on their relationship with the child alone. Parents can consent to the grandparents of their children having visitation rights. However, only when the child’s family is not intact and custody proceedings are ongoing can a grandparent file for visitation against a parent’s wishes. If a child’s parents separate and one or both of them file for custody, a grandparent can petition for visitation at that time. The window of opportunity for filing is small, as this step must be taken before a final custody order is entered.

Even when grandparents petition to be a party to their grandchild’s custody proceedings, they must prove that denying them visitation would harm the child. North Carolina courts prioritize the child’s best interest in custody and visitation cases. If a grandparent cannot show that visitation is absolutely necessary for their grandchild’s well-being, they will likely not be granted court-ordered visitation rights.

McIntyre v. McIntyre

The McIntyre case is an example of when courts will allow grandparents to file for visitation rights in North Carolina. In December 1992, the plaintiffs, who were the grandparents of the two children in the case, filed for visitation rights based on the best interest of the children. At that time, custody was not an issue, and the children’s family was intact. In other words, the parents were still together and living with their children as a family.

The children’s parents, the defendants in this case, moved to dismiss the visitation complaint in February 1993 because they believed the trial court lacked jurisdiction to interfere with a parent’s decision regarding who their children could spend time with. In October 1993, the trial court judge dismissed the grandparents’ visitation complaint, stating it was unconstitutional to take away a parent’s right to choose who their child associates with. The grandparents appealed.

The Court of Appeals, however, affirmed the trial court’s ruling because North Carolina law does not support a grandparent’s right to file for visitation when the child’s family is intact and there are no pending custody matters. Grandparent rights in North Carolina can be a complex subject. For a clear picture, contact an experienced family law attorney.