Grandparent Visitation When Widowed

Rose v. Powell, 2023-NCCOA-______ (2023).

Facts: Plaintiffs were the biological grandparents of the minor child in this case. Plaintiffs’ son, Jacob Chandler Rose, unexpectedly passed away. At the time of his death, the Defendant, Jacob’s wife, was pregnant with Jacob’s child, later named Aubrey, born on April 30, 2019. The Plaintiffs embraced their role as grandparents to Aubrey and spent time together, forming a close bond until May 2021. During this period, they assisted the Defendant with legal matters related to social security claims and provided financial support for Aubrey’s baptism. However, in May 2021, the Defendant severed contact between the Plaintiffs and Aubrey, resulting in a cessation of visitation. The Plaintiffs responded by seeking secondary custody of Aubrey on November 29, 2021. The Defendant, on February 2, 2022, filed a motion to dismiss and countered with requests for temporary and permanent custody, along with child support arrangements. The case was heard on August 15, 2022, the court issued an order dismissing the case. The Plaintiffs appealed this decision.

Rationale: Under the statute for child custody, grandparents may petition for visitation rights only if there is a claim pending between the parents of the child, or when there is a modification proceeding, or if there has been a stepparent or relative adoption. And generally, a grandparent can petition for custody in situations where the parents have acted in a manner inconsistent with their constitutionally protected rights. Grandparents may not seek visitation against parents whose families are intact and there is no custody case ongoing. Since these plaintiffs did not allege that Defendant was unfit or had abandoned the child, and that there was no ongoing custody proceeding for the child, the plaintiffs did not have authority to seek custody.