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Grandparent and Custody

Posted by Kathleen Murphy | Mar 21, 2019

If you find yourself in conflict with the parents of your grandchildren, you have some limited rights to seek visitation ….. we are not talking custody at this stage.

If the parents are not divorced, there is no visitation.

The law allows grandparents to see their grandchildren in certain circumstances after the parents'divorce.  The test is whether the visitation is in the grandchildren's best interests.

To get court order visitation, the grandparent has to file while the parents' custody case is unresolved and still pending.  The process is that the grandparents file a Motion to Interevend in the parents' case.  This must be done during the pendency of the parents' custody case or the right to visitation is lost (unless there is a substantial change of circumstances from the original action)

Here is the law:

  • N.C. General Statute 50-13.2(b1) states that “an order for custody of a minor child may provide visitation rights for any grandparent of the child as the court, in its discretion, deems appropriate.”  North Carolina appellate courts have indicated that if a grandparent can show a “substantial relationship” with the child and a custody suit is pending, grandparents have a right to intervene.
  • N.C. Gen. Stat. § 50-13.2 entitles a grandparent to seek visitation when the child is “adopted by a stepparent or a relative of the child where a substantial relationship exists between the grandparent and the child.”  Under this statute, there need not be a pending custody case.
  • N.C. General Statute 50-13.5(j) entitles a grandparent to seek visitation “in any action in which the custody of a minor child has been determined, upon a motion in the cause and a showing of changed circumstances pursuant to N.C. General Statute 50-13.7.”  Under this statute, a grandparent must show that he or she has a “substantial relationship” with the child, and also that a “substantial change of circumstances affecting the welfare of the child” has occurred since a prior custody order was entered (more about this topic in a coming article).

Now, how about gaining custody of a grandchild?  Any person may file for custody of a child but must show that the parents are unfit or acted inconsistent with their constitutionally protected status as parents.  Once that is shown, the next burden is to prove that the child and the person have a substantial relationship and that the it is in the best interests of the minor child that their custody be awarded to the third party i.e. the grandparent. 

Here is the law:

  • N.C. General Statute 50-13.1(a) any person may “institute an action or proceeding for custody” of a child under certain circumstances.  Under this statute, any person may sue for custody (not visitation) on grounds that the parents are unfit or have “acted inconsistently” with their constitutionally protected status as parents.

See our blog post regarding Unfit Parent

About the Author

Kathleen Murphy

Kathleen Murphy is graduate of North Carolina State University with a B.A. in Political Science, 1985. She attended Campbell University Law School and received her Juris Doctorate, 1988. Ms. Murphy has been a family law attorney for over 30 years and has limited her practice solely to family law since 1988. On October 1, 2023, Kathleen accepted a position as a senior attorney with Triangle Divorce Lawyers and she can be reached at [email protected]. Ms. Murphy is a member of the North Carolina State Bar, North Carolina Bar Association, NCBA Family Law Section Member, is a trained Family Financial Mediator and a trained Child's Advocate. Ms. Murphy is married to a City of Raleigh Firefighter and has four children, three daughters and a son. Ms. Murphy is a contributor to an International podcast. Crime Stories with Nancy Grace is broadcasted daily and you can hear Ms. Murphy's comments on cases involving victims of family crimes and the impact of family court.