Grandparents are entitled to file for visitation in North Carolina if they can meet two requirements: (1) They are a grandparent and (2) there is a pending custody dispute. 

The first requirement is fairly straightforward.  The second requirement means that there needs to be a custody case pending that has not been settled by a permanent custody order.  Just the fact that the parents are no longer living together, or even hate each other, is not enough.  There must be a pending lawsuit over custody.  If custody was settled by a permanent custody order, then the filing by either party of a motion to modify custody reopens the custody dispute and provides the grandparents an opportunity to file their motion for grandparent visitation.  In any pending custody dispute, the grandparents can file a motion to intervene in that dispute seeking grandparent visitation.

Grandparent visitation means a schedule for the grandparents apart from that of either parent.  Often times, this is unnecessary as each grandparent has liberal access to their grandchildren when their son or daughter has them for their custodial time.  However, what happens in the worst-case scenario of the untimely death of a parent?  The answer is that all custodial rights are immediately vested in the other parent and unless the grandparent has intervened already, any custody case that existed between the parents “abates,” meaning it is essentially null.  If that grandparent already has a visitation schedule or a claim for visitation pending, then that grandparent can secure their right to maintain a relationship with their grandchildren for the remainder of their childhood.  So, any grandparent who is worried that their ex-son or daughter-in-law would ostracize them from their grandchildren if something happens to their own child, should consider securing their rights to visitation.

There are circumstances where a grandparent and other third parties can obtain custody of their grandchildren, or non-biological children.  This requires significant, additional burdens of proof since the biological parents of the children have a constitutional right to parent their children.  The grandparent, or other third party, must first demonstrate that they have a substantial relationship with the children in the nature of a parent-child relationship.  This is a fact-intensive inquiry, and we would need to discuss many details of the relationship between yourself and the children and the history and extent of care that you have provided for the children.

If a substantial relationship can be established, then the grandparent or third party must demonstrate that both parents are either unfit for custody of the children or have acted inconsistently with their constitutionally protected parental status.  Unfitness is usually do to the mental or physical inability to care for the children, whether it be due to substance abuse issues, other mental illness, physical incapacity or a history of carelessness over the welfare of the children.  “Inconsistent acts” is an intentionally vague standard that is designed to cover a variety of circumstances.  One of the more common circumstances is leaving the children with a third party (usually a grandparent) for an extended period of time with no plan or serious effort to resume exercising the care of the children.  This can be considered an act inconsistent with a parent’s parental status.  If the Court makes that finding on the part of both parents, then the Court can apply the standard of determining what is in the best interests of the children and grant custody to a third party who has a substantial relationship with the children.

If you believe that these circumstances fit your case and desire to file for visitation or custody, then we will need to discuss this in detail during a consultation.