North Carolina Law Blog
Grandparents Rights Lawyers in Fayetteville NC
The North Carolina Court of Appeals in Alexander v Alexander ruled on March 16, 2021 the NC Grandparent visitation law violated a mother’s constitutional rights. In the published decision by Judge Dillon, the Court analyzes issues including:
- The North Carolina Grandparents Rights – Visitation Statutes
- NCGS 50-13.2(b1) and NCGS 50-13.5(j)
- Grandparents’ Motion to Intervene
- Gransparents’ Request for Visitation
- Parental Presumption of Best Interests
- Adverse Interference with Parent-Child Relationship
NC Statutory Authority – Grandparent Visitation
The matter came before the Court on the issue of whether a Family Court Judge may Order visitation with grandparents upon the death of the child’s biological father. Under the pending case law, the NCCOA has said visitation may take place when there is an on-going custody action between the parents.
In Alexander v. Alexander the mother appealed, arguing the NC grandparent visitation statutes are unconstitutional as they impermissibly interfere with the parent’s fundamental Due Process rights.
Those fundamental Due Process rights include the exclusive custody, care, and control of children by a parent.
It is important to note the NC grandparent rights (visitation statute) is not on its face unconstitutional. Both the NC Supreme Court and the US Supreme Court have in the past held grandparent visitation orders involving grandparent and grandchild may not violate Due Process subject to certain limitations.
As such, there can be instances when a trial court may award visitation rights to grandparents.
One example would be if a parent is found to be “unfit.” Another instance is when parents waive Constitutional Rights to the custody of the child.
Obviously, there are not always good relationships in visitation cases. In visitation disputes in North Carolina, the interests of the child are deemed the “polar star.” State laws mandate the family court judge, the judge ruling on visitation, consider whether the relationship with grandchildren is in their “best interests.”
Even if a supporting grandparent, one concerned with the financial and emotional well-being of the child, the Court must also consider the Due Process rights of the parent in making a ruling on visitation.
The Court is required to give sufficient deference to the parent’s decision as to whether the child should visit grandparents. Extensive visitation with grandparents may, as a matter of law, serve to inappropriately and illegally interfere with the parent-child relationship.
Best Interests of Children
Parents who are “fit” enjoy a legal presumption. It is presumed they act in the best interests of their children.
That presumption cannot be overlooked simply because the Family Court Judge personally believes a different decision would be better. As such, the Court is required to presume a parent’s determination of whether grandparents should have visitation rights is correct.
Overturning such a presumption necessarily would require substantial evidence that the child has a significant bond with the grandparents and the biological parent denies all contact between the child and grandparents. That likely would be a significant burden to overcome.
Interference with Parent-Child Relationship
Visitation awards upon a petition for grandparents’ visitation rights cannot adversely interfere with the relationship between parent and child.
Custodial parents have the legal right to determine with whom their children spend time, including major holidays. Parents should not be prevented or deprived of the right to spend holidays with children.
While grandparent visitation may be legally appropriate in certain circumstances, it cannot be too extensive or overly intrusive. Again, the custodial parent has the right to determine how much time the child or children spends a large majority of weekends.
Put simply, it is deemed a paramount right of parents to decide with whom their children may or may not associate.
Do Grandparents’ Visitation Rights Exist in North Carolina?
Consistent with Alexander v. Alexander, there may be instances when a Family Court Judge may grant visitation with a grandparent. There are also instances when legal custody of a child may be with grandparents.
NC General Statute 50-13.1 addresses when and how the Court may grant visitation or custody to a grandparent. Those instances include when a parent has waived his or her Constitutional Rights to the child.
The Court may also do so when and if the parent is deemed “unfit,” due to neglect or acting contrary to the best interests and welfare of the child. The Court may consider whether Due Process rights to exclusive control, care, and custody of a child are applicable.
In any such legal determination, the Court must further conclude visitation with grandparents is in the best interests of the minor child or children.
Furthermore, under NCGS Chapter 50-13.2(b1) and NCGS 50-13.5(j) the Family Court Judge may Order visitation rights to grandparents when an on-going custody dispute exists between the parents and:
- Grandparents are able to overcome the presumption that a parent’s decision regarding visitation is in the best interests of the minor child; and,
- The Court concludes as a matter of law that visitation with grandparents is in fact in the best interests of the child; and,
- Grandparent visitation does not interfere adversely with the parent-child relationship
Fayetteville Family Law Attorneys
If you have a question regarding your rights as a parent in North Carolina, we’d like to help. The NC Family Laws in Chapter 50 can be somewhat complicated at times.
That is particularly true in legal issues involving visitation and “grandparents’ rights” to visitation as family law attorneys may call them.
Our law office in Fayetteville helps people with divorce, child custody, and complex family law legal issues.