NC Court of Appeals Limits Application of Grandparent Visitation Statute

Who doesn’t have fond memories of hanging out at Nana and Pop Pop’s house growing up? Whether you spent your time outside fishing in the pond or had fun in the kitchen making cookies (or doing other things you and your grandparents enjoyed together), time spent with them might seem almost sacred, like it’s a right. And to a degree, the courts in the United States agree. The U.S. Supreme Court has even ruled in the past that grandparent visitation statutes aren’t unconstitutional on their face. But in a recent case, the North Carolina Court of Appeals made it clear that visitation with grandparents isn’t an absolute right. In doing so, it placed even more restrictions on when courts can allow visitation, and how much they can award.

The court case

In Alexander v. Alexander, Amy and Edward got married in 2006 and had a child in 2009. They ended up divorcing in 2014 and entered a consent custody order. Unfortunately, in 2016, Edward developed cancer and moved in with his parents as his condition worsened. In 2017, he filed a motion to modify custody and his parents filed to intervene and asked for an award of grandparent visitation under N.C.G.S. 50-13.2(b1) and N.C.G..S. 50-13.5(j). The court allowed Edward’s parents to intervene and later, after Edward died, entered a permanent custody order granting Amy sole physical and legal custody and granting extensive visitation rights to Edward’s parents, including visitation every other weekend and every other Christmas and Thanksgiving.

N.C. Court of Appeals ruling

In it’s ruling, the Court of Appeals shared how prior case law has made it clear parents have a constitutional right to the care, custody, and control of their children but that the right is not absolute. If parents act inconsistent with their parental rights (for instance, by neglecting or abusing their children) then a court can deem them unfit and award custody to another party. In this case, the trial court did not rule Amy an unfit mother. Instead, it recognized her as a fit parent and awarded her sole legal and physical custody. But when it did, it also awarded the grandparents extensive visitation.

While Amy argued Edward’s parents didn’t have statutory authority after Edward died to seek visitation, the Court of Appeals found that they did—citing previous case law that has recognized the right of grandparents to intervene and ask for visitation during a contested custody action between two parents, and has recognized the right of the grandparents to continue the action, even after a parent dies.

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But while the grandparents had the statutory authority to request visitation, the Court of Appeals concluded they did not overcome the presumption that a fit parent’s decision is in the best interest of the child. There is a presumption that any decision a fit parent makes is in the best interest of the minor child, including decisions about who the parent lets the children see. Since the trial court concluded Amy was a fit parent by granting her sole custody, there’s a presumption that her decision to limit contact with the grandparents is in the best interest of the child.

The Court of Appeals also ruled that the amount of visitation awarded was unconstitutionally generous, since it impermissibly interfered with the parent/child relationship. The trial court awarded the grandparents every other weekend and two major holidays every other year. But the Court of Appeals reinforced Amy’s right, as the child’s mother, to spend Christmas and Thanksgiving with her child and direct how her child spends most of their weekends.

Ultimately the Court of Appeals vacated the visitation provisions in the permanent custody order and sent the case back to the trial court, asking that it apply the proper legal standard to decide whether to award the grandparents visitation or not.

What this means moving forward

If a court rules a parent unfit, the court can grant custody or visitation to a grandparent if the court rules it’s in the best interest of the child. If the parent is fit, a court can still grant grandparents visitation during an on-going custody dispute if the grandparents overcome the presumption that a parent’s decision regarding visitation is in the best interest of the child, the court decides visitation is in the best interest of the child, and the visitation awarded does not adversely interfere with the parent/child relationship.

Cases involving grandparent visitation or requests for custody are complicated but it helps to have a knowledgeable attorney on your side to help you navigate the legal process. Our family law attorneys have extensive experience representing both grandparents and parents in child custody cases. We can help. Contact our office today to schedule a consultation.