Child custody and visitation is often a contentious issue during certain family law proceedings, such as divorce. Of course, in North and South Carolina, some presume the mother will be granted custody of the children and the father will be granted visitation rights. Indeed, there may not be technical “Grandparents Rights” to child custody or visitation.
Those traditional assumptions regarding child custody and visitation by parents (or grandparents) often are not accurate.
The courts are concerned with the best interests of the children and their wellbeing, not necessarily those of the parents. In North Carolina that’s considered the polar star by which courts are guided.
As such, whatever custody arrangement best benefits the children, their welfare, and well-being is of key importance. If visitation with grandchildren is in the grandchildren’s best interests, a Court may Order than as part of its Family Court ruling.
The issue of child custody and visitation rights can also extend to other members of the immediate family. That may necessitate filing a Motion to Intervene by grandparents.
Grandparents may wish to have visitation rights to their grandchildren but may be prevented from doing so by biological parents or stepparents, thereby requiring a Court Order for visitation.
In North and South Carolina, state statutory law provides explicit guidance as to when grandparents should be granted grandchild visitation or even custody of the grandchild.
Both states defer to the outcome that would be in the “best interests of the child.”Grandparents Rights in South Carolina
In 2014, the South Carolina legislature amended the statutory law in order to allow an easier path for grandparents to obtain visitation rights. As modified, subsection 63-3-530(A)(33) authorizes the family court:
to order visitation for the grandparent of a minor child where either or both parents of the minor child is or are deceased, or are divorced, or are living separate and apart in different habitats, if the court finds that:
- The child’s parents or guardians are unreasonably depriving the grandparent of the opportunity to visit with the child, including denying visitation of the minor child to the grandparent for a period exceeding ninety days; and
- Awarding grandparent visitation would not interfere with the parent-child relationship; and:
- the court finds by clear and convincing evidence that the child’s parents or guardians are unfit; or
- the court finds by clear and convincing evidence that there are compelling circumstances to overcome the presumption that the parental decision is in the child’s best interest.
The judge presiding over this matter may award attorney’s fees and costs to the prevailing party. For purposes of this item, “grandparent” means the natural or adoptive parent of a natural or adoptive parent of a minor child.Grandparents Rights to Visitation in North Carolina
In order to bring an action for custody or visitation of a grandchild, the grandparent must fall under one of North Carolina’s statutory sections pertaining to grandparent visitation. The pertinent statutory sections are as follows:
N.C. Gen. Stat. §50-13.1(a) states that: “Any parent, relative, or other person, agency, organization or institution claiming the right to custody of a minor child may institute an action or proceeding for the custody of such child, as hereinafter provided.”
N.C. Gen. Stat. §50-13.2(b1) reads: “An order for custody of a minor child may provide visitation rights for any grandparent of the child as the court, in its discretion, deems appropriate. As used in this subsection, “grandparent” includes a biological grandparent of a child adopted by a stepparent or a relative of the child where a substantial relationship exists between the grandparent and the child….”
N.C. Gen. Stat. §50-13.2A states that: “A biological grandparent may institute an action or proceeding for visitation rights with a child adopted by a stepparent or a relative of the child where a substantial relationship exists between the grandparent and the child. Under no circumstances shall a biological grandparent of a child adopted by adoptive parents, neither of whom is related to the child and where parental rights of both biological parents have been terminated, be entitled to visitation rights. A court may award visitation rights if it determines that visitation is in the best interest of the child…”
N.C. Gen. Stat. §50-13.5(j) reads: “In any action in which the custody of a minor child has been determined, upon a motion in the cause and a showing of changed circumstances pursuant to G.S. 50-13.7, the grandparents of the child are entitled to such custody or visitation rights as the court, in its discretion, deems appropriate. As used in this subsection, “grandparent” includes a biological grandparent of a child adopted by a stepparent or a relative of the child where a substantial relationship exists between the grandparent and the child. Under no circumstances shall a biological grandparent of a child adopted by adoptive parents, neither of whom is related to the child and where parental rights of both biological parents have been terminated, be entitled to visitation rights.”
As stated previously, a grandparent must fall under one of North Carolina’s statutory sections. Then, like South Carolina courts, a North Carolina family court judge will determine whether child custody or visitation rights should be granted based on the “best interests of the child” standard.Call Now for a Consultation With a Carolina Family Lawyer
Our Charlotte Family Law Attorneys can help you navigate child custody and visitation issues. As North Carolina domestic lawyers, we understand the nuances of child custody and visitation laws and can guide through the process. We understand the sensitive nature of child custody issues and will zealously advocate and negotiate on your behalf to protect your legal rights and best interests.
Powers Law Firm
Charlotte, NC Office
2412 Arty Avenue
Charlotte, NC 28208
** Attorney Bill Powers is licensed in North Carolina and only handles domestic cases in North Carolina.