Grandparents’ Rights

The law has changed over the past several decades so that today grandparents have visitation rights that did not exist before. This is because originally, visitation rights only applied to a child’s parents. In fact, unlike parents’ rights, grandparents’ rights are not granted through historic North Carolina law nor the state’s Constitution. That being said, over the decades state laws and courts across the nation – including in North Carolina – have acknowledged that grandparents are often a vital part in raising a healthy child.

Grandparent involvement has become so common that in some cases grandparents are not just deeply involved in the raising of their grandchild, but often then act as the child’s primary caregiver. Statistics show that the proportion of children living with their grandparents has doubled in the United States since the 1970s. This number has gone up 7% since 2013 alone. In several cases, these caregivers need official visitation, custody, or adoption rights in order to have any legal right to make decisions about a child’s healthcare, education, or other important issues.

Below is a brief overview of grandparents’ rights, their implications, and how they relate to issues such as visitation, custody, or adoption in North Carolina.

• Visitation rights: North Carolina law grants grandparents the right to request court-ordered visitation. This can be granted if legal separation, divorce, or death has disrupted the child’s immediate family, causing the child’s biological parents to no longer be living together. North Carolina law states that divorce proceedings or a legal separation order may include grandparent visitation rights. Of note, should a stepparent have adopted the child, the biological grandparent can petition for court-ordered visitation rights. The biological grandparent must first show a substantial relationship between him or her and the minor child has already been established.
• Physical custody: Physical custody means the child is living in the adult’s home. A person’s legal ability to care for a minor child when only physical custody is granted is dependent on whether or not the child’s parent gives consent of release. Without this release, a grandparent is unable to seek routine healthcare for the child. Regarding schooling, in certain cases North Carolina law allows adults with only physical custody of a child to enroll the minor in a school with or without parental consent. This process typically requires an affidavit indicating the grandparent’s relationship with the child and attesting the primary reason for physical custody is not simply to get into a particular school.
• Legal custody: Legal custody allows for the child’s legal custodian to be able to make decisions for the child, as long as these decisions do not violate the custody order. Notably, legal custody does not terminate parental rights. Legal custody must be petitioned through North Carolina courts and can be sought voluntarily (parental consent) or involuntarily (without parental consent). Should a grandparent seek involuntary legal custody, he or she must show the court that the parent is unfit to raise his or her child.
• Adoption: This is the most legally binding and permanent option for Monroe Union County grandparents seeking to raise their grandchild or grandchildren. Unlike custody explained above, adoption does terminate parental rights of the biological parents. This also means the biological parents no longer owe a legal duty to provide child support. Once the adoption process is completed through the North Carolina courts, any further visitations or contact by the biological parents with the child is at the discretion of the adoptive parent(s) as well as the court.

As can be gathered, winning a case for legal custody or adoption of a child can take several months. If you or someone you know believes a grandchild is suffering immediate harm – whether it be physical or otherwise – you should immediately contact local law enforcement as well as North Carolina’s Child Protective Services in Monroe Union County’s Department of Social Services. Not only will doing so help immediately remove your grandchild from a harmful situation, but it will also help to document any history of abuse that may be used in court later, if necessary.

Across our nation, the legal standard that judges must follow in family law proceedings involving minors is almost always the “best interests of the child.” This inquiry is subjective, and is made on a case-by-case basis by the presiding judge. Not surprisingly, these cases can quickly become complicated depending on the family’s situation. If you or someone you know is looking to assert your rights as a grandparent under North Carolina law, contact the skilled attorneys at Arnold & Smith, PLLC. We have a number of board-certified specialists in family law that can help you understand your rights under the law.