When parents separate and divorce, grandparents sometimes get caught in the middle. Grandparents’ opportunities to spend time with their grandchildren may be restricted by one or both parents. In some divorce situations, grandparents may feel it necessary to seek custody of their grandchildren. And in some situations, if grandparents don’t become legally involved in a custody case, they risk losing all rights to see their grandchild in the future.
To address concerns about maintaining the special bond between children and their grandparents, the North Carolina legislature enacted four statutes that specifically address the rights of grandparents in custody cases. This article focuses on grandparents’ right to “intervene” – that is, become parties to a pending custody case – so that they have a legal and enforceable right to visit their grandchildren after a divorce.
In North Carolina, when an “intact family” exists, no other person, including a grandparent, may intervene to ask the court for permission to see the child, over a parent’s objection. After a judge has made a final decision about child custody by, among other things, deciding how much time the child will spend with each parent, the child is legally considered to be living with each parent in an “intact family.” Under the law, single-parent homes are considered as “intact” as homes in which the parents live together and make decisions about whom their child may see. Therefore, when parents of a child are separated a grandparent may wish to intervene in the initial custody determination prior to the court’s decision on custody. Following a final custody determination, the family remains “intact” until and unless one of the parents moves to modify (change) the custodial arrangement established by the court.
If one of the parents moves to modify custody, a grandparent may file a “motion to intervene” in that case, asking the court for permission to become a party in the modification suit so that he or she may seek custody or visitation rights. Grandparents have an absolute right to intervene in such cases, so long as the case is pending. Once a grandparent is allowed to intervene, the court must decide whether a “substantial relationship” exists between the grandparent and child, and whether that relationship warrants an order allowing a grandparent to spend time with the child.
The risk for grandparents, in divorce situations, is that neither parent will ever file a motion to modify custody, and the grandparent therefore never has the right or ability to intervene. In a handful of North Carolina cases, grandparents lost their right to ever visit their grandchildren after a parent died following a final custody decision, and the surviving parent did not want the visits to occur. Under the law, the surviving parent and children constituted an “intact family,” and the court has generally held in those cases that the grandparents had no right to intervene and the court no longer had jurisdiction to allow the grandparent to do so.
Grandparents may wish to ensure their future right to visit with grandchildren by asking their divorcing son or daughter to include visitation time for them in an out-of-court custody settlement agreement between the parents. If the divorcing parents are unable to settle their custody dispute out of court, grandparents may wish to intervene in the initial custody action. Before doing so, grandparents should consult an attorney with experience in grandparents’ custody and visitation rights to determine the best course for protecting that special bond with their grandchildren.
Contributor: Stephanie J. Gibbs - Stephanie Gibbs is a Raleigh, North Carolina Family Law Attorney with the Raleigh, North Carolina Family Law Firm of Gailor, Wallis & Hunt, PLLC. For more information contact Gailor, Wallis & Hunt, PLLC at 1101 Haynes Street, Suite 201, Raleigh, NC 27604, Tel: 919-832-8488 or go to www.gailorwallishunt.com
Disclaimer: The information contained in this article is intended as a general guide and is not to be used as legal advice by Gailor, Wallis & Hunt, PLLC. Whether or not you may be entitled to take action in regard to the information addressed in this article can only be determined after a thorough review of the facts and circumstances of your case. You may contact North Carolina Family Lawyers Gailor, Wallis & Hunt, PLLC, a full service divorce law firm, at 919-832-8488 or 910-509-7223.
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