When Do North Carolina Courts Allow Grandparents to Seek Custody and Visitation?

Parents have a constitutionally protected right to take care of their children, which includes making decisions about whom their children will spend time with. It is difficult to overcome this parental presumption. Grandparents who wish to seek visitation with their grandchildren should be aware that there are strict rules in North Carolina about when they can file and on what factors a decision will be based.

Evans v. Myers

In a recent North Carolina Court of Appeals case, Evans v. Myers, Mother appealed after the trial court granted Paternal Grandparents legal and physical custody of her child while only awarding her limited visitation.

Mother filed for child custody in 2017 against Father, and they were granted joint legal and physical custody with a week on, week off schedule. In 2018, Mother filed a motion for a show cause order on the basis that Father had failed to adhere to the order requirement regarding the school in which the child should be enrolled. Grandparents then filed a motion to intervene and modify custody because they believed there had been a substantial change of circumstances and that it would be in the best interest of the child for legal and physical custody to be given to them.

Grandparents claimed that:

• Mother was not transporting the child to school during her weeks, which caused the child to miss every other week of school, and both parents had been served with truancy paperwork
• The child had stated she was afraid of and hated Mother
• The child was exhibiting signs of emotional distress, such as incontinence and screaming during the night

The trial court awarded Grandparents legal and physical custody and granted four weeks of summer visitation to Father. Mother was awarded only one weekend during one of Father’s summer visitation weeks. Both Mother and Father appealed.

In their appeal, the parents stated that the findings of fact were insufficient to establish that they had forfeited their protected status as parents, which is required before third-party custody is granted in North Carolina. The appellate court vacated that ruling and remanded it to the trial court, at which point the lower court added findings of fact but did not change the custody or visitation portions of the order. Mother appealed again, arguing that the lower court erred when awarding custody to Grandparents and limiting her visitation to two days per year.

In the second appeal, the Court of Appeals determined that the decision to grant custody to grandparents was not in error, but the trial court did fail to allow reasonable visitation absent a finding that Mother is unfit for visitation or that visitation is not in the best interest of the child. The case was affirmed in part but reversed and remanded for further proceedings regarding Mother’s visitation.

When Grandparents Can Request Visitation

Grandparents in this case filed a motion to intervene after Mother filed proceedings regarding the child because that is one of the few ways that North Carolina allows grandparents to seek custody or visitation. The state only provides grandparents the opportunity to request custody or visitation if there is an ongoing custody case or if the parents are unfit.