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Grandparent Visitation After Death of a Parent

Gray v. Holliday, COA20-425 (May 2021) (unpublished).

In Greensboro, grandparent visitation rights may be awarded if the Court deems it appropriate. This often happens by intervening in the custody battle being fought by the custodial parents. But what happens when one of the parents passes away before the custody issue is resolved? Or what happens in a case where there is no underlying custody litigation, and a grandparent wishes to begin one?

  • Facts: Mother and Father were not married. They had a minor child together. Mother was the primary custodian of the child, and Father would sporadically visit and have few overnights. The minor child primarily resided with maternal Grandmother while in Mother’s custody. A domestic violence action was initiated by Mother when Father made threats to her life and then snatched the child during a custody exchange and sped off without securing the child in a car seat. The DVPO was granted. Mother then passed away. Grandmother sought custody and filed an emergency custody complaint, which was granted. The court set aside the DVPO due to Mother’s death, and Grandmother then amended her complaint to seek custody, alleging that Father had acted inconsistently with his constitutionally protected status as a parent by abusing Mother and not visiting the child. A motion to dismiss was filed by Father based on lack of standing, which was denied. Grandmother was granted primary custody and Father visitation. Father appealed.

 

  • Issue: Was the trial court in error when it denied Father’s motion to dismiss?

 

  • Holding:

 

  • Rationale: Father attempted to argue in the motion to dismiss that Grandmother lacked standing to bring the child custody action. Our statutes allow relatives to initiate such actions, so long as they allege sufficient facts to show that the parent is unfit or acted inconsistently with their constitutionally protected parental status. If the facts alleged in a complaint do not meet the sufficiency requirement, then the complaint is normally dismissed for lack of standing. Notably, sufficiency of a pleading is a separate inquiry from a trial court’s determination based on evidence (clear, cogent, and convincing). Grandmother alleged in her complaint that Father was the subject of a DVPO due to his threats and actions disregarding the safety of the child, physical abuse of Mother, threatened abuse of the Mother, lack of consistent visitation, and Father’s lack of pursuit of custody. These facts had met the lower bar in a pleading as they indeed show facts that Father was acting inconsistent with his status as a parent. This is enough to survive a motion to dismiss.