Case Review: Grandparent Visitation Rights and the Death of a Parent

Grandparents can only file for visitation during an ongoing custody dispute between the parents or if they can prove the parents are unfit. What happens if the parents’ custody case is resolved before the court has a chance to decide on grandparent visitation? This was the question at the center of a recent North Carolina Court of Appeals case.

Linker v. Linker

Mother and Father had a child in 2009 and lived together as a family for five years. In 2014, the parents agreed to a temporary consent order that granted Mother primary physical custody. The order also required that Father’s overnight visitation be supervised by Paternal Grandmother. Later that year, the temporary consent order was formalized.

A Department of Social Services report was later filed on Father, but no credible evidence was found during the investigation. However, there was evidence that Mother had emotionally abused the child, and the parents agreed to a safety plan that involved the child being placed with Grandmother. Mother and Father had supervised visits at the child’s therapist’s office.

The minor child lived with Grandmother temporarily until custody was awarded to Father in 2015. Mother was allowed two one-hour supervised visits each week until a modification in 2019 that increased her visitation. Shortly after the entry of this order, Defendant Father was diagnosed with colon cancer, and the parents agreed to a week on, week off schedule. In 2022, Father filed a motion to modify the 2019 custody order. A few days later, Grandmother filed a motion to intervene in order to seek visitation. Father died the next day.

The trial court held a hearing on Grandmother’s motion to intervene and determined that there were unresolved custody issues still pending when Father died and that Grandmother had standing to seek visitation due to her prior involvement with the minor child. Mother appealed the court’s decision to move forward with Grandmother’s petition to intervene, and the appellate court classified the appeal as interlocutory because the trial court had not yet entered a final order regarding custody and visitation.

An interlocutory appeal can only be heard if the order being appealed affects a party’s substantial right. Since parents have a constitutional right to the custody, care, and control of their children, it was decided that Mother’s appeal in Linker could be heard.

The appellate court affirmed the lower court’s decision, stating that it correctly allowed Grandmother’s motion to intervene because there was a pending custody action at the time she filed. As long as a grandparent files to intervene while a custody dispute is still ongoing, it does not matter if the parents’ dispute is resolved prior to a decision on grandparent visitation. In this case, the death of Father did not prohibit Grandmother from continuing her visitation case.