Grandparent Custody and Visitation
Graham v. Jones, 270 N.C. App. 674 (2020).
In North Carolina, grandparents have the ability to have their concerns for custody and visitation heard by the courts. Our statutes allow any parent, relative, or other person claiming a right to custody to institute an action for child custody. Grandparents are relatives of the minor child, and thus have standing to file for custody. But the laws surrounding grandparent custody and visitation are extremely nuanced as a result of being developed over many years of case law. Below is one case that summarizes this area of law.
- Facts: Mother and Father had a child together. Plaintiffs are the paternal grandparents of the minor child. Defendant is the Mother. Father passed away in a car accident. The Plaintiffs alleged that Mother is unfit to be the custodian of the child. A temporary Order was put in place that found that Mother was not unfit, she did not act inconsistently with her constitutionally protected status as a parent, that the child was not abandoned or neglected by Mother. Mother was awarded sole custody. However, the Plaintiffs were granted visitation on a schedule ordered by the court. Mother appealed.
- Issue: Was the trial court in error in granting visitation to the Plaintiffs (grandparents)?
- Holding: Yes
- Rationale: Our statutes allow relatives to initiate a lawsuit for custody of a minor child and also note that custody and visitation are synonymous. But in the context of grandparents, custody and visitation are two separate ideas. Grandparents may only start a lawsuit for custody, not visitation. They are also required to allege that the parent is unfit or has acted inconsistently with a parent’s constitutionally protected status. The reason for the stark differentiation in custody and visitation when it comes to grandparents is found in the chapter 50 statutes that specify when a grandparent can seek visitation. Those times can be summarized as when there already is an ongoing custody litigation, or if the minor child is being adopted by a stepparent or relative and the grandparents have a substantial relationship with the child. In this case, there was no ongoing custody case, and no stepparent or relative was adopting the child. Therefore, there was no avenue for the Plaintiffs to get visitation. While it is true that the Plaintiffs alleged that Mother acted inconsistently with her constitutionally protected status, the trial court already found that she was fit and did act consistent with her protected status—thus giving no basis for the award for visitation.
If you are seeking to initiate a custody case, there are very specific allegations and facts required. If a case is already ongoing, then timing needs to be considered. If you are a grandparent seeking custody or visitation, or if your case involves grandparents seeking custody/visitation, please speak to a family law specialist to understand your rights and options.