North Carolina Divorce Lawyers BlogWhen Grandparents Can Seek Visitation
Wayne Hopper, Legal Assistant
Graham v. Jones
Child custody issues can be confusing and difficult to navigate. This is especially true when grandparents seek custody of a grandchild. Grandparents find themselves with questions regarding child custody and their rights and often do not know where to begin. Would it be best to seek custody or visitation? What are the potential benefits and drawbacks of each? Which is likely to be more successful? North Carolina case law can answer those questions. Decisions made by N.C. courts establish legal precedents which help guide courts in making decisions on similar issues today. For grandparents seeking custody or visitation due to the death of their own child (a biological parent of the child in question) and parental fitness of the surviving parent, the case of Graham v. Jones may provide some guidance.
Wanda and George Graham (“Plaintiffs”) are the paternal grandparents of a minor child, Abby. Abby was born to Christopher Butler and Stephanie Jones (“Defendant”), who were never married. Abby lived with her mother and father in the Plaintiffs’ home from birth until August 2018 when Abby, Christopher, and Defendant moved into a rented apartment, along with Defendant’s two other minor children from a previous relationship. In August /2018, a Domestic Violence Protective Order (“DVPO”) was entered against Defendant for “attempting to cause bodily harm to Christopher Butler” while he was holding Abby. The conditions of that DVPO granted Christopher temporary custody of Abby and further stipulated that Defendant was prohibited from having any contact with Christopher. Defendant was granted visitation of one hour per week with Abby. Subsequently, Christopher and Abby moved back in with his parents (Plaintiffs) while Defendant moved to Texas and did not exercise any of her visitation rights granted by the temporary custody order. The DVPO was set to expire in August 2019.
The next month (September 2018) Christopher was killed in a car accident. Considering their son’s death and Defendant’s absence, Abby remained under Plaintiffs’ care. Immediately after Christopher’s death, Defendant communicated to Plaintiffs that she would return to North Carolina on October 4 to remove Abby from their custody and return to Texas with the child. On October 2, 2018, Plaintiffs filed a complaint seeking “full legal custody of the minor child” and “primary physical custody of the minor child on an emergency, temporary, and permanent basis.” To support their complaint, Plaintiffs alleged abandonment, lack of parental fitness, and “behavior generally inconsistent with her constitutionally-protected status as a parent.” On October 3, the trial court entered an Ex Parte Order, which prevented Defendant from removing Abby from the jurisdiction, granted Plaintiffs’ custody of Abby, and set a date for a temporary custody hearing. The trial court entered a ruling in November 2018 which found among other things: 1) “Defendant did not abandon her child,” 2) “Defendant is not an unfit parent,” 3) “Defendant has not acted in a manner inconsistent with her constitutionally protected right as a parent,” 4) “That it is in the best interest of the minor child to place full physical and legal custody with Defendant,” 5) “That Plaintiffs are fit and proper person[s] to have reasonable visitation with the minor child,” 6) “That the Court has the authority to grant Plaintiffs reasonable visitation,” and 7) “That it is in the best interest of the minor child to have reasonable visitation with Plaintiffs, Wanda Graham and George Graham.” Defendant appealed.
Our discussion here will examine two specific issues: 1) Whether grandparents can be awarded visitation with their grandchild (following the death of their adult child who had custody of the minor child in question) and 2) Whether the “best interest of the child” standard can be used to grant grandparents custody or visitation. On appeal, the court found that there was no basis for the trial court to grant visitation to the grandparents and nor did they have the authority to do so. Furthermore, the trial court’s application of the “best interest of the child” standard to grant Plaintiffs’ visitation “offend[s] the Due Process Clause.”
In reversing the lower court’s decision, the appellate court noted the trial court’s finding that Defendant was not unfit and had not acted inconsistently with her constitutionally protected status as a parent. These claims were in large part the basis under which Plaintiffs sought custody of their grandchild. Under N.C. law, the custody claim against the parent must be dismissed, unless the grandparent can show that the parent has lost his or her protected status. The appellate court also found that the trial court wrongly granted visitation to the Plaintiffs for the same failure to establish a basis for the loss of Defendant’s protected status as a parent. Furthermore, the appellate court found the trial court wrongly applied the “best interest of the child standard” because the law states that the standard can only be applied after the trial court has determined that the parent has acted in a manner inconsistent with his or her protected status – a finding the trial court never made in this case.
Under North Carolina law and the United States Constitution, parents have been granted special protected status, in part to maintain the integrity of families. As a result, it can be difficult for grandparents (and other third parties) to gain custody or visitation of minor children when at least one parent is still alive. N.C. Gen. Stat. § 50-13.5(j) allows grandparents to seek visitation by intervening in an existing custody case (a case still open) and alleging facts sufficient to support a showing of a substantial change of circumstances affecting the welfare of the child. In other words, grandparents can only bring suit for visitation either at the time of an ongoing custody proceeding or where the minor child is in the custody of a stepparent or a relative since the original order was entered and that modification is in the best interest of the child. These laws were all created to protect the rights of parents and to highlight the premium the law places on the relationship between parent and child. If you are a grandparent interested in seeking custody of a grandchild, contact the Woodruff Family Law Group. Our experienced and dedicated attorneys can help guide you through the difficult and trying child custody process.