In Raleigh, Grandparents have some limited statutorily defined rights under North Carolina Child Custody Law for visitation with minor children in custody disputes. NCGS 50-13.2 provides for Grandparents being allowed visitation in a Raleigh Child Custody Order when the issue of child custody is in dispute provided the Court deems it appropriate and the Grandparents have formally made themselves parties and requested this be addressed by the court.
Grandparents may not, however, file an independent action for child custody or for visitation based upon their status as grandparents. This is due to the constitutionally protected status of the biological parent being the controlling factor. In addition, Grandparents may not seek visitation with their grandchildren when the family is intact (Mom, Dad, and child) because they are not being allowed to see their grandchildren.
In cases where custody has already been determined and a Child Custody Order was entered, Grandparents may file a motion for visitation based upon a substantial change in circumstances as set forth in NCGS 50.13.5(j ) by alleging that the minor children’s family is no longer intact or if the custody proceeding is ongoing (meaning there is either no Raleigh Child Custody Order in place of there has been a request by either parent to change the Child Custody Order currently in place.) An intact family can constitute a single parent and child.
Typically, when either parent files a Motion to Modify Child Custody, this creates the situation of the custody proceeding being considered as ongoing, and that is when it would be appropriate for grandparents to seek visitation of their grandchildren. For more information on Grandparents’ visitation, see the N.C. Court of Appeals decision in Eakett v. Eakett, 157 N.C. App, 500, 579 S.E.2d 486 (2003.)
In any action by a Grandparent, it is important to note the distinction between a claim for “custody” and a claim for “visitation.” The statutes only allow Grandparents to seek “visitation” unless the parents are acting inconsistent with their constitutionally protected status as a parent, which then may give rise to a claim for custody.
The terms visitation and custody are often not distinguishable in Child Custody law in Raleigh, but here there is a clear distinction particularly with grandparents. The legislature was not attempting to create a method for Grandparents to take away custody from Parents, only to grandparents to see the child when custody is in dispute and the child would benefit from that relationship.
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