Grandparent Visitation After Death of a Parent

Alexander v. Alexander, ______ N.C. _______ (2021) (COA19-391).

In Greensboro, Grandparents may be awarded visitation rights if the Court deems it appropriate. Often, it is by intervening in the custody battle being fought by the custodial parents. Even after a final custody order is entered, a Grandparent may seek visitation when the circumstances affecting the child have substantially changed. But what happens when one of the parents passes away before the custody issue is resolved?

• Facts: Mother and Father were in the midst of a custody modification.  A consent order had been entered in 2014 for joint custody. However, a couple of years later, the Father unfortunately developed cancer, and he was forced to move in with his parents (the child’s grandparents). The child would spend his time at the grandparents when it was Father’s custodial time. Father then moved to modify custody, and the grandparents moved to intervene for visitation. Father eventually passed. The motion to modify was dismissed as moot, and Mother wanted to terminate the grandparent’s visitation rights. The Court, however, granted the grandparents extensive visitation, every other weekend visitation, and included custodial time on major holidays. Mother appealed.

 

• Issue: Was the trial court in error when it ordered grandparents visitation when the father had died?

 

• Holding:

 

• Rationale: The Court performed a two-part analysis, first determining whether there was statutory authority for the trial court to award grandparent’s visitation after a parent had passed, and whether the order the trial court entered was constitutionally permissible. Very simply, the grandparents in this case had properly initiated their visitation claim and were parties to the case before the Father died. The second analysis determined that the trial court’s order did not give enough deference to the Mother’s wishes regarding grandparent’s visitation. It was remanded to the trial court to make findings as to what the Mother’s wishes are. But the Court also also stated that, while the Mother’s wishes are presumed to be appropriate, the presumption can be overcome if, for instance, the child had developed a significant bond with the Grandparents. However, the Court specifically stated that the visitation in this trial court order was too generous—it essentially awarded the grandparents secondary custody.

 

 

• Lessons and Observations:

 

1. First, it is important as an intervening grandparent to become a party to the case before the custody issue
2. Second, visitation that amounts to secondary custody may be too extensive. The sole custodial parent retains a right to determine how much time the child spends with other people. It is not to say that the child cannot spend weekends or holidays with the grandparents if that it is the custodial parent’s wishes, but that a trial court cannot order it because it interferes with the parent-child relationship too much.