Grandparent Rights

Today, grandparents have visitation and custody rights that did not exist even 40 years ago. Visitation rights originally only applied to a child’s parents and grandparents’ rights do not come from historic state law or the Constitution. Over time, state law and courts have come to recognize that grandparents can be an integral part in the healthy raising of a child.

In many cases, grandparents are much more than part of the raising of a child and are heavily involved in the child’s life or act as the child’s primary caretakers. The 2000 U.S. Census estimated that 6.9 percent of all children under age 18 in this country live in households headed by grandparents. For these caregivers, it can be important to obtain official visitation, custody or adoption rights to be able to have any legal right to make education, healthcare or other important decisions for the child. Below is an overview of grandparent rights as relating to visitation, custody or adoption in North Carolina, and the practical implications of each.

In North Carolina, grandparents have the right to request court-ordered visitation if legal separation, divorce or death has disrupted the child’s immediate family and caused the biological parents to no longer live together. The law states that an order in legal separation or divorce proceedings can include grandparent visitation rights.

If a stepparent has adopted the child, a biological grandparent can request court-ordered visitation rights if they can first show that a substantial relationship between the grandparent and child already exists.

• Physical custody: This just means having the child present in your home. Your legal ability to care for the child with only physical custody hinges on whether or not their parent gives consent of release. Without this consent, you will not be able to obtain routine health care for the child, which can be an impediment to their school enrollment.

• School

• If taking physical custody of a child means that the child must change or enroll in a new school, this will be one of the first responsibilities relative caregivers must confront. North Carolina statutes allow for adults with only physical custody to enroll a child in school with or without parental consent in certain circumstances. The grandparent or other relative caregiver must submit an affidavit that indicates his or her relationship with the child and attests that the primary reason that the child is with the caregiver is not because a child is trying to get into a certain school, but because:

• The parent is incarcerated, seriously ill or dead

• the parent’s physical or mental condition prevents him or her from providing appropriate care

• the parent abused, abandoned or neglected the child, or

• the child’s home was destroyed by natural disaster

• The caregiver must also accept full responsibility for all of the child’s educational decisions. If the parent or legal guardian agrees, it is typical for them to write an affidavit also attesting similar information. However, if they are unavailable, unable or refuse to give consent, the petitioning caregiver can include this fact in their own affidavit and the parental affidavit can be omitted.

• Health Care

• A kinship caregiver with only physical custody does not have the right to get the child routine medical care without parental consent. The one exception to this is for life-threatening situations.

• North Carolina’s medical consent law specifically allows for a parent with custody or other legal guardian to sign an Authorization to Consent to Health Care for Minor for another adult with whom the child has been living. This authorizes the adult to obtain vaccinations and routine medical care. Without this, the child might not be able to get government-required vaccinations that they need to attend school. If this is a situation in which you find yourself, you might need to consider one of the more legally binding options of legal custody or adoption.

• Legal custody: This must be petitioned for through the courts. Legal custody does not terminate parental rights but does let the custodian make decisions for the child (as long as they don’t violate the custody order). This includes decisions about school and education. Legal custody can be obtained voluntarily or involuntarily on behalf of the parent, but without parental consent, the grandparent must show the court that the parent is unfit to parent the child

Adoption is the most permanent, legally binding option for grandparents looking to raise their grandchild or grandchildren. Unlike custody, adoption terminates the biological parents’ rights and their duty to support the child. Once the adoption is complete through the courts, any further contact or visitations with the biological parents is at the discretion of the adoptive parent(s) and the court.

Winning a case for legal custody or adoption can take months. If you think that your grandchild is suffering immediate harm, physical or otherwise, it is important to immediately contact local law enforcement and the Child Protective Services unit in your county’s Department of Social Services. Besides primarily removing the child from immediate harm, this will help document any history of abuse that can be used in the courts later if necessary.

Although the legal standard for family law proceedings involving minors is almost always the “best interests of the child,” this is a subjective, case-by-case inquiry that can quickly become complicated depending on family dynamics. If you are looking to assert your rights as a grandparent or are facing some other family law issue such as divorce, please contact Arnold & Smith, PLLC today. Our practice’s Board-Certified Specialists in Family Law are available to consult with you in Charlotte, North Carolina about your case. Time is of the essence in most family law matters and it is important to act quickly to protect your rights.