When child custody disputes are resolved in the courts of North Carolina the presiding judge has a duty to enter a child custody order that best promotes the minor child’s best interest and general welfare of the child, while also protecting the parents’ constitutional rights. The Supreme Court of North Carolina ruled in Peterson v. Rogers states that parents have a constitutional right to the care, custody and control of their minor children. Our courts presume that parents will act appropriately to promote the best interest and general welfare of their children, but parents can lose the right to custody of their children.
Since parents have a constitutional right to care, custody and control of their minor children, when there is a dispute over child custody between a parent and a non-parent, such as a grandparent, the count cannot simply apply the “best interest of the child” standard to determine child custody. First, the ruling in Peterson requires that the non-parent prove by clear and convincing evidence that the parents are unfit, have neglected the child or otherwise have acted inconsistent to their constitutionally protected status as parents. Secondly, the non-parent must establish that he or she has a “sufficient relationship” with the child; generally, the relationship is in the nature of a parent-child relationship. If the court determines that both of these elements listed above have been established then the Court is allowed to proceed with the “best interest of the child” analysis in making its child custody determination. If either one of the elements listed above are not proven the presiding judge is not authorized to give the non-parent custody or visitation.
There are several North Carolina Child Custody statutes that specifically identify grandparents’ rights to visitation and to intervene into a pending child custody case involving their grandchildren. For instance, North Carolina General Statute 50-13.2(b1) States “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.” Unfortunately for many grandparents, the Peterson case calls into question the constitutionality of these North Carolina statutes and our courts have not yet definitively ruled on whether these grandparent’s rights statutes are constitutional. For instance, in McIntyre v. McIntyre the Court of Appeals ruled that the General Assembly did not intend that for the child custody statute to be “a broad grant to grandparents of the right to visitation when the natural parents have legal custody of their children and are living as an intact family.” This ruling restricts grandparents from filing a new claim for visitation and/or custody when there is not a pending custody dispute between the parents. Grandparents are allowed to intervene into a pending child custody case prior to entry of a permanent child custody order, or if either parent has filed a motion to modify a permanent child custody order.
In conclusion, a non-parent seeking child custody or visitation of a minor child will need to prove that the parents are unfit, have neglected the child or otherwise acted inconsistent to their constitutionally protected status as parents and that the non-parent has a signficant relationship with the minor child. If those circumstances do not exist and the non-parent is the child’s grandparent there are some circumstances where the courts may award the grandparent visitation based on the North Carolina grandparent statutes, but given the Peterson ruling the judge deciding your case may decline to award the grandparent visitation on constitutional grounds.