Can I Get Child Custody of My Grandchildren?

In North Carolina, Grandparents do have rights, and can file for Child Custody of a minor child. In order to do so, a Grandparent must sue for custody from the parent or individual caring for the minor child and allege parental unfitness or child neglect. This can become a complicated process, especially if a parent is opposed to the Grandparent taking custody.

Under North Carolina Law, Grandparents may also be awarded visitation rights as well; however, the standard that must be met is much higher and the Grandparent has the burden of proving the visitation is within the best interest of the minor child. And to make it even more difficult, a Grandparent only has standing to sue for visitation if there has been a custody order entered or there is an ongoing custody dispute and the family is no longer intact.

The Supreme Court of North Carolina has refused to give Grandparents standing in the event there is an intact family, and a family has been considered to be intact if it consists of a singe parent with a child, and if that parent has no ongoing custody dispute, the grandparent has no standing to seek visitation. Even in the event that two parents are separated, if there is no ongoing child custody dispute in North Carolina or any other state, the Grandparents do not have standing to file for child custody.

Four separate statutes give a grandparent a way into a North Carolina custody case

In North Carolina a grandparent’s claim is never simply “grandparent rights.” It has to be pinned to one of four provisions, and each carries its own precondition. Choosing the wrong one is a common reason a grandparent’s pleading is dismissed before the evidence is heard.

• G.S. 50-13.1(a), the general custody statute, which lets “any parent, relative, or other person” institute an action for custody, and which treats “custody” as including visitation
• G.S. 50-13.2(b1), under which 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”
• G.S. 50-13.2A, a standalone action for visitation with a grandchild adopted by a stepparent or a relative, where a substantial relationship exists between the grandparent and the child
• G.S. 50-13.5(j), a motion in the cause in a case where custody has already been determined, on a showing of changed circumstances under G.S. 50-13.7, which leaves the grandparent “entitled to such custody or visitation rights as the court, in its discretion, deems appropriate”

A grandparent’s custody claim is measured against the parent’s constitutional status, not the child’s best interest

In North Carolina a grandparent who sues a parent for custody under G.S. 50-13.1(a) does not start at best interest. The parent holds a constitutionally protected interest in the care, custody and control of the child, and the grandparent must allege and prove that the parent has lost it — by unfitness, or by conduct inconsistent with the parent’s protected status. Adams v. Tessener, 354 N.C. 57 (2001) requires that showing to be made by clear and convincing evidence.

What will not carry the claim is the fact of separation itself. McDuffie v. Mitchell, 155 N.C. App. 587 (2002), which Wellons v. White, 229 N.C. App. 164 (2013) follows on the point, treats estrangement from a grandchild as beside the question: standing to seek custody under G.S. 50-13.1(a) turns on parental unfitness or acts that forfeit the parent’s protected status, and a pleading that alleges only the loss of contact is dismissed before any evidence is heard.

The order of operations matters. Best interest under G.S. 50-13.2(a) is reached only after the threshold is crossed. In Barger v. Barger, 149 N.C. App. 224 (2002) the Court of Appeals noted that once the trial court found the father fit, it was error to go on to say the child’s best interest would be served by leaving custody with the grandparents. The parental preference also survives the death of a parent: in Owenby v. Young, 357 N.C. 142 (2003) the grandmother failed to show that the surviving father had forfeited his protected status, and McDuffie held that a non-custodial parent has the same constitutional right to the care, custody and control of his children as a custodial parent, rejecting the argument that grandparents acquire expanded rights when a custodial parent dies.

The “intact family” rule limits grandparent visitation, not a grandparent custody claim

The intact family rule comes from McIntyre v. McIntyre, 341 N.C. 629 (1995), where the Supreme Court of North Carolina held that grandparents had no standing to seek visitation while the natural parents had legal custody and were living with the children as an intact family, with no custody proceeding under way. McIntyre reads the General Assembly as having given grandparents expanded visitation rights only in the specific situations covered by the grandparent visitation statutes.

That rule is about visitation. The Court of Appeals held in Eakett v. Eakett, 157 N.C. App. 550 (2003) that the intact family analysis does not apply to a claim brought under G.S. 50-13.1(a), and Grindstaff v. Byers, 152 N.C. App. 288 (2002) confirmed that grandparents alleging unfitness may bring an initial suit for custody even where no custody proceeding is ongoing. The trade-off is the standard: a grandparent proceeding under G.S. 50-13.1(a) must show that the parent has waived the constitutional right to custody, which is a heavier burden than the one the visitation statutes impose. That subsection is not a grandparent visitation statute at all — it gives a grandparent no more than any other third party who can make the same showing.

Grandparent visitation under G.S. 50-13.2(b1) and G.S. 50-13.5(j) requires a live custody dispute

G.S. 50-13.2(b1) does not create an independent action. It permits a court to include grandparent visitation in an order for custody, in its discretion, and the Court of Appeals has read it as applying only where custody of the child is an ongoing issue between the parents — see Moore v. Moore, 89 N.C. App. 351 (1988), Hill v. Newman, 131 N.C. App. 793 (1998) and Smith v. Barbour, 195 N.C. App. 244 (2009). In Smith v. Barbour the mother’s visitation was still pending, so custody was still in issue and being litigated, which supplied the basis for the grandmother’s motion to intervene.

G.S. 50-13.5(j) is similarly confined. Eakett v. Eakett held that a complaint under that subsection must allege an ongoing custody dispute between the parents, and that where more than a year had passed since the custody order was entered, the grandparents could not use the subsection to assert a visitation claim. Quesinberry v. Quesinberry, 196 N.C. App. 118 (2009) is the other side of the line: where the parents’ dispute was ongoing when the grandparents filed, a later consent judgment resolving the parents’ dispute did not divest the court of jurisdiction over the grandparents’ request.

Since Troxel, the court must begin from the parent’s own decision about contact

Even where a grandparent has standing, the inquiry is not open-ended. Relying on Troxel v. Granville, 530 U.S. 57 (2000), the Court of Appeals held in Alexander v. Alexander, 276 N.C. App. 148 (2021) that applying G.S. 50-13.2(b1) and G.S. 50-13.5(j) without deference to a parent’s decision about grandparent contact, and in a way that interfered with the parent–child relationship, violated due process.

Alexander sets out the working rule: the trial court must presume that the parent’s determination about the appropriateness of visitation with the grandparent is correct, and if the grandparent rebuts that presumption, the court may not award visitation that interferes with the parent–child relationship. In that case the award of alternating weekends and alternating Christmas and Thanksgiving holidays to the grandparents was held to interfere. Alexander also shows that timing is measured from the moment the grandparents came into the case: because they had been allowed to intervene in the action between the parents before the father died, the trial court retained authority to consider their request for visitation afterwards, even though no claim remained between the parents.

Visitation with an adopted grandchild has its own statute and its own bar

G.S. 50-13.2A permits a biological grandparent to “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.” Unlike G.S. 50-13.2(b1), this is a freestanding action; it does not depend on a custody dispute between the parents. The court may award visitation if it determines that visitation is in the best interest of the child — the power is discretionary, and no order follows from the substantial relationship alone — and an order awarding visitation “shall contain findings of fact which support the determination by the judge of the best interest of the child.” Procedure, venue and jurisdiction are as in an action for custody.

Hill v. Newman, 131 N.C. App. 793 (1998) held that the substantial relationship requirement is explicit in the statute, and found it satisfied where the grandparent had helped raise the grandchildren from birth. Hill also upheld a denial of visitation on best-interest grounds where the grandmother could not accept that the adoptive parents were the children’s parents and could not get along with them. One bar is absolute and appears in G.S. 50-13.2A, G.S. 50-13.2(b1) and G.S. 50-13.5(j) alike: “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.”

What the pleading has to allege, and why cases fail at that stage

Because the constitutional threshold governs standing, a grandparent’s complaint or motion is tested on its allegations before any evidence is heard. Grindstaff v. Byers survived a Rule 12(b)(6) motion where the complaint alleged that the parents had left the children in the grandmother’s care, visited infrequently and inconsistently, were preoccupied with their own lives, and had not shown they were capable of caring for and supervising the children. Wellons v. White, the decision that restates the estrangement rule, shows the other side of it: allegations that the father had not exercised visitation and could not provide a stable home environment were held sufficient to give the grandparent standing to seek custody under G.S. 50-13.1(a).

The failures are instructive in the opposite direction. In Perdue v. Fuqua, 195 N.C. App. 583 (2009) a motion to intervene under G.S. 50-13.5(j) was denied where the grandmother alleged only that the father had lost a job, taken new work on third shift, used a young girlfriend as a babysitter, and that the child had lived with her for four months. In McDuffie v. Mitchell the complaint was dismissed after the custodial mother’s death because it did not allege facts showing the father had acted inconsistently with his protected status. And in Sides v. Ikner, 222 N.C. App. 538 (2012), findings that the father had complied with the existing custody order and paid support could not support a conclusion that he had relinquished his status merely because the grandmother had assumed a parent-like role on her own.

How a grandparent case proceeds once it is filed in Mecklenburg County

The procedural rules are the ordinary custody rules. Venue lies under G.S. 50-13.5(f) in the county where the child resides or is physically present, or in a county where a parent resides, which for a child living in Charlotte means the District Court in Mecklenburg County. The first pleading, or an affidavit attached to it, must carry the sworn information required by G.S. 50A-209(a), including the child’s address, everywhere the child has lived for the last five years, and the names and addresses of anyone else claiming custody or visitation. A contested claim is set for custody mediation under G.S. 50-13.1(b) in any district with a program established under G.S. 7A-494, unless the court waives it for good cause under G.S. 50-13.1(c).

Two things can displace the case. If the child is also the subject of a juvenile abuse, neglect or dependency proceeding under Subchapter 1 of Chapter 7B, G.S. 50-13.1(i) stays the Chapter 50 action as provided in G.S. 7B-200; under G.S. 7B-200(c) that stay attaches when the court obtains jurisdiction over the juvenile, and it gives way where the juvenile proceeding and the custody claim are consolidated or the court in the juvenile proceeding enters an order dissolving it. The juvenile proceeding may also bring the child an advocate, though not in every case: G.S. 7B-601(a) requires the court to appoint a guardian ad litem where the petition alleges the juvenile is abused or neglected, and permits but does not require an appointment where dependency alone is alleged.

The third possibility is that the grandparent already holds custody or visitation under an order. A later change is then pursued under G.S. 50-13.7(a) on a motion in the cause and a showing of changed circumstances, in the same way as between parents.

Common questions

Written for North Carolina law and reviewed by David P. Sheehan, attorney, Charlotte. General information, not legal advice — see the disclaimer.

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