Season 1 Episode 8: Grandparent Visitation

Note: Our Podcast, “A Year and a Day: Divorce Without Destruction”, was created to be heard, but we provide text transcripts to make this information accessible to everyone. All transcripts on our website are created using a combination of speech recognition software and human transcribers and could contain errors.

Jaime Davis: Welcome to Episode 8 of ‘A Year and a Day’. I’m your host Jaime Davis. In Episode 7, I discussed the benefits of couple’s therapy with licensed marriage and family therapist Caroline Landon. In this episode I will have the pleasure of discussing the topic of grandparent visitation with my law partner, Stephanie Gibbs. Stephanie is a Board certified family law specialist and has practiced family law with Gailor Hunt for almost 13 years. In addition to representing clients in family law matters, Stephanie also offers representation in connection with domestic violence and criminal matters that may arise in the context of a domestic case. Welcome Stephanie.

Stephanie Gibbs: Hi there, Jaime.

Jaime Davis: So, when a couple separates we normally think about a custody schedule being put in place that sets forth when the children will spend time with each of their parents. But in some cases grandparents may also have a right to visitation as well. What exactly is grandparent visitation?

Stephanie Gibbs: Grandparent visitation is the right to visit with your grandchild independent of your grandchild’s parents, objection or otherwise, pursuant to a court order. In other words, if your grandchild’s parents object to you visiting with your grandchild a court order may allow you visitation with your grandchild regardless of one or both parents’ objections.

Jaime Davis: Why might a grandparent seek formal visitation with his or her grandchild rather than just seeing the grandchild when his or her adult child has custody?

Stephanie Gibbs: Well, there are many circumstances that may come into play. As you know, sometimes adult children and their parents, the grandparents, may not get along and there are other circumstances. An adult child may have a grave illness, such as cancer, and the grandparent is uncertain whether the other parent, soon to be the ex-spouse or the estranged other parent of the child will allow the grandparent to see the child if the sick parent goes into the hospital or dies, is unable to exercise custody with his or her child, thus eliminating the right of the grandparent to see the child. A grandparent and the adult child or the parent of the child, may have such a strained relationship that the adult child will not allow visitation, nor will the other parent. Perhaps a grandparent fears that his adult child will move away or remarry or otherwise end up in a situation that would make visitation with the child difficult or impossible. Or perhaps an adult child is in prison. Perhaps a grandparent doesn’t get, get along with either parent, but loves the child and wants to ensure that no matter what happens that the grandparent will be able to maintain and preserve his or her relationship with the child. And when I say adult child this may be either parent of the child, regardless.

Jaime Davis: So, it’s not necessarily that the grandparent doesn’t get along with his or her adult child, but it could just be a way for them to preserve their relationship with their grandchild if they’re worried maybe the other parent is not going to allow them to see the child, am I understanding that right?

Stephanie Gibbs: You are understanding that perfectly. It can be one or both parents who the grandparent fears will not allow visitation, and the grandparent wants to ensure that he or she or they are able to see the grandchild moving forward before a permanent custody order is entered.

Jaime Davis: So practically speaking, if a grandparent wants to have visitation with his or her grandchild, how does that grandparent go about getting visitation?

Stephanie Gibbs: Well, the first thing that would happen is that the grandparent would hopefully see an attorney because the process is a little bit complicated, it can be done on one zone, but the first thing you have to do is file a motion to intervene, meaning, come into the case as a party, and attach to your motion, which is a request of the court, would be something called an intervener’s complaint, and in both of these documents you would have to show the court certain circumstances that would persuade the court that you should No. 1, be allowed into the case as a party, and No. 2, that you should be granted visitation because it’s in the best interest of the child that you and that grandchild preserve your relationship.

Jaime Davis: So before we get into the circumstances of when a grandparent might be able to get visitation, it sounds like what you’re saying is that there has to be an ongoing custody case. Is that right, there has to be an, an open custody matter for the grandparent to come into?

Stephanie Gibbs: In most cases that is the case. There has to be a pending custody claim between the child’s parents or the child’s parent and guardian. In other words it has to be before the court in most cases. There are circumstances under which you could move to modify a current custody orders, or, so that you would have visitation.

Jaime Davis: But there needs to be some sort of court action before you as grandparent can come in and say court, I would like to have some visitation with my grandchild, is that correct? Is that correct?

Stephanie Gibbs: That is absolutely correct in most cases.

Jaime Davis: So, in North Carolina are there any specific laws that govern when a grandparent may seek visitation with a grandchild?

Stephanie Gibbs: That’s a great question, Jaime. North Carolina has four different statutes, also known as laws, that relate to grandparent custody and visitation.

Jaime Davis: Oh, so custody and visitation are not necessarily the same thing in every case?

Stephanie Gibbs: That’s true. But as between parents, it, custody and visitation mean the same thing to the court. It’s just two parts of the same puzzle. But when it comes to grandparents, custody and visitation are two very different matters and the Supreme Court has said, grandparents should not file under one of these four laws if all they want is visitation. If they’re seeking custody they’ll want to go under North Carolina General Statute 5013.1. That is the general custody statute that allows for anybody seeking custody of the child to ask the court to grant them custody.

Jaime Davis: And so that’s more than what we’re talking about when we are speaking about grandparent visitation, that’s more than just, I’d like, maybe, some time on Saturday with my grandchild. This is saying, hey court, I want to have significant custodial time with my grandchild, is that right?

Stephanie Gibbs: That’s right. 50-13.1 not only would give you that substantial amount of time, like weeks at a time, but also would allow you to make major decisions for the child. That is generally the realm of the parent. For grandparents, if you’re seeking just visitation you should go under one of the other three statutes that relate to custody and visitation as it affects grandparents. If a grandparent on the other hand is seeking custody they should proceed under the general custody statute, but visitation only meaning relatively short regular intervals of time with the child without the authority to make major decisions on the child’s behalf, that’s when they should seek only visitation, and I can tell you about those statutes as well.

Jaime Davis: Yeah, and so, what statutes in North Carolina govern visitation with a grandchild?

Stephanie Gibbs: The one most commonly used in my experience is North Carolina General Statute 50-13.2(b)(1). For the technically minded among us, all right, this is the statute that allows grandparents to seek visitation with their grandchildren when the children’s parents separate and one of them files suit for custody. This statute allows grandparents to seek visitation during the custody dispute. The thing to remember is it’s a very narrow window of opportunity for a grandparent to seek visitation, that is once there’s a permanent custody order entered, they no longer have that opportunity to seek visitation with the child.

Jaime Davis: And so if mom and dad, there’s a pending custody action, let’s say mom has filed for custody, are you saying that as early on in the process as possible that’s when grandma or grandpa should ask for visitation if they want to?

Stephanie Gibbs: Well timing is everything in life, right. Sometimes they should reach out to the parents first to see whether there is going to be any issue or to perhaps see if there’d be consent by the parents to perhaps adding them into the, a consent order, if that will be possible if everybody will resolve this dispute amicably. If it doesn’t look like that will be the case, and if a grandparent or grandparents understand or know that one of the parents will be adamantly opposed to them seeing the child once the divorce happens and the permanent custody order is entered, they should go ahead and file a motion to intervene and an intervener’s complaint, and again, most commonly people go under this grandparent visitation statute.

Jaime Davis: So who is allowed to intervene in an ongoing custody action?

Stephanie Gibbs: Well technically anybody can seek to intervene, but grandparents have these laws that allow them specifically to intervene. Under the statute we were just discussing for when there’s a pending custody action, a grandparent should state to the court that they have a substantial relationship with the child, that they’re the grandparent of the child, how long they’ve known the child, how they’ve cared for the child, what they’ve done for the child physically, emotionally, financially, the care that they’ve provided, and then present that to the court and see if the court will allow them to come into the case as a party so that they and, you know, and their lawyer would have a table in the courtroom and be able to show the court why they should be allowed to visit with the child and why it’s in the child’s best interest that visitation be ordered.

Jaime Davis: In your experience what does it typically require to show the court that as a grandparent you have a substantial relationship with the grandchild?

Stephanie Gibbs: That term, that phrase, has not been succinctly defined any way in the case law. But it generally means that you’re not a stranger to the child, that the child knows you, that there is a relationship. I’ve handled cases where the child’s a baby, an infant, and it’s been more difficult than not to show the court that there is a substantial relationship, but we’ve managed.

Jaime Davis: What do you think about in cases where maybe the grandparent lives on the other side of the country, or maybe they live in a foreign country, do you think that that grandparent might have a harder time proving the substantial relationship?

Stephanie Gibbs: It depends on how much contact they’ve had with the child. It depends upon what they can show the court. I defended a grandparent visitation defendant against a grandparent visitation case where the parents lived in another country. And there were some procedural issues with that particular case, but the substantive argument was that it was not in the child, children’s, they’re twins, children’s best interest that they hop on a plane and visit their grandparents on a regular routine basis.

Jaime Davis: So if you are the mom or the dad, it sounds like there may be some defenses to preventing a grandparent from intervening in the custody case. In your experience, what are some of those defenses?

Stephanie Gibbs: Well one of the defenses is against the intervention itself.

Jaime Davis: What does that mean?

Stephanie Gibbs: Okay, so the motion to intervene is what you file initially to ask the court to let you into the case. That motion must be timely filed such that it does not prejudice the other parties. If you try to file that motion and hop into the case after everybody’s done their depositions, after everybody’s conducted discovery, after all parties have had a chance to investigate your grandparents’ claim, in other words you just jump on the boat at the last minute, a judge may say this is not timely filed and deny your motion to intervene and therefore you’re not allowed into the case and you cannot ask for visitation until some later date, perhaps when one of the parents moves to modify the permanent custody order, if that makes sense.

Jaime Davis: Yeah, that makes perfect sense. So it sounds like if the grandparent waits too long and their delay is going to maybe be prejudicial to mom or to dad, because they can’t really figure out the facts of what, you know, the grandparent may argue, that the court there may not allow them into the case, is that right?

Stephanie Gibbs: That’s correct. That’s correct. Because the current parties at that point would not have had a chance to gather the facts they would need to defend their positions.

Jaime Davis: But it sounds like the grandparent may get a second bite of the apple if you will since custody, and we haven’t mentioned this yet, but custody orders are modifiable, meaning they can be changed in North Carolina until the child turns 18, and so if a custody order gets entered when a child is very young, there’s a pretty high likelihood at some point mom or dad may come back and ask the court to change that order, and so what I’m hearing you say Stephanie is that if that is the case then grandma or grandpa might have another chance to come back and ask for visitation, is that right?

Stephanie Gibbs: That’s right. The window of opportunity opens again, and at that point, depending on the family’s circumstances, the grandparent may be allowed visitation. Of course, again, there’s a substantial relationship under one of these laws affecting grandparent visitation in that if they haven’t seen the child for a very long time, again it becomes harder to prove.

Jaime Davis: Sure.

Stephanie Gibbs: So, in my mind it’s better to file that motion in the first instance rather than wait for a modification because No. 1, that modification may never happen, and No. 2, if it does it may have been many years since the grandparent has seen the child. There are other defenses we haven’t talked about it yet, but the Intact Family Rule.

Jaime Davis: So, so tell us about that Stephanie, what is the Intact Family Rule?

Stephanie Gibbs: The Intact Family Rule is a protection of a parent’s constitutional right to the care, custody and control of their child. What that means in simple terms is parents get to decide who their children see or don’t see. And so that’s a constitutional right, and the Intact Family Rule was created so that parents don’t have to succumb to the demands of third-parties, such as grandparents, who demand to see their children. Now the way that works in North Carolina is a grandparent may not intervene in a situation where two parents are together with their children. In other words, a grandparent can’t demand visitation where nobody’s seeking a, a new custody arrangement, where there’s no, as the court would say, strain on the family, such as an adoption or a divorce. If the intact family is just living its life, grandparent can’t sort of barge into that life and demand to visit with the children, that’s entirely up to the parents. An intact family in North Carolina can mean just one parent and the child. So, let’s say for example, one of the parents dies, sad situation, but you’ve got one parent and one child, and there’s no custody action pending because there’s only one parent who would have custody.

Jaime Davis: What if, I know you mentioned earlier the word adoption, what if there’s a, let’s say a stepparent adoption, may a grandparent intervene in that case?

Stephanie Gibbs: If the grandparent is a biological grandparent and, yes, you, you can file that motion to intervene and your intervener’s complaint, but you have to be a biological parent – grandparent – excuse me, of the child.

Jaime Davis: What about a case where a parent gives a child up for adoption, not a stepparent adoption, but a true adoption, may that child’s grandparents ask for visitation?

Stephanie Gibbs: No, the law is very clear in North Carolina that once there’s a true adoption and the child is adopted by people who are unrelated in any way to the grandparents’ family, the grandparent may not, not seek visitation with the child.

Jaime Davis: And I wanna go back for a minute, Stephanie, are there any other defenses that a parent could raise to a grandparent intervening in the custody case?

Stephanie Gibbs: Yes, so besides the procedural defense that the motion to intervene was not timely served and may be prejudicial to the other parties, there’s also the procedural question of whether the motion to intervene and the intervener’s complaint were properly drafted, were the proper facts or allegations stated in both the motion and in the complaint, and there are some very specific facts or allegations that you have to state in order to intervene so that the judge understands that your interests are not represented by either party, and we can talk about that in a bit, but generally speaking, a grandparents’ visitation rights, if you wanna call them rights, prior to being awarded by the court, a grandparents’ rights cannot be adequately represented by his or her child, and the reason for that is that the child could die, you know, car accidents happen, illnesses happen, and if the child dies and the other parent, the surviving parent doesn’t want the grandparent to see the child, the grandparent won’t because that will be an intact family once the parent dies.

Other defenses are substantive, such as, it can be argued that it’s not in the best interest of the child that a grandparent be permitted to intervene because the child should not be exposed to the grandparents’ lifestyle, habits, or conditions. For example, does the grandparent smoke, abuse substances, drugs, does the grandparent have a criminal history, is there a problem with pornography, or other criminal allegations that could come into play, or sometimes if both parents feel that the grandparent would not be a good influence upon the child, they can tell the court that. It is the grandparents’ burden to prove that visitation would be in the child’s best interest, so the grandparent has to put forth facts and information that would show that to the court. A grandparent whose adult child has died may have such a poor relationship with the surviving parent that the stressful interaction between the parent and the grandparent would have a negative effect upon the child that can be argued. And finally, some lawyers believe, some people believe that all of these grandparent visitation statutes are unconstitutional. In fact, my understanding is that there’s a challenge about to take place before the three judge panel in North Carolina as to the constitutionality of the statute we discussed earlier, 50-13.2(b)(1).

Jaime Davis: And, and what is the reasoning behind that, Stephanie? What is the reasoning behind the argument that that statute may not be constitutional?

Stephanie Gibbs: Well very generally speaking, that parents should and do have the right to decide with whom their children associate, the right of association, right. So, parents get to decide that, and a court should not override that constitutional right to decide, make these important decisions about their child.

Jaime Davis: But at this point we don’t know how the court is gonna rule on this issue, is that right?

Stephanie Gibbs: That’s correct. That’s correct.

Jaime Davis: So let’s say that you have been successful as a grandparent and the court has allowed you to come into the custody action as a party, and the court is going to award you some visitation with the grandchild, what might that look like?

Stephanie Gibbs: Well, the first thing to know is that it is independent visitation, independent of either of the parents. So, the court would carve out time during the month, generally on a routine and regular basis, say one weekend a month, maybe a day a month, and maybe a week in the summer, or 2 weeks in the summer, or a week over Christmas, or 2 hours during the child’s birthday plus once a month. But it’s a routine and regular visitation schedule usually. It’s written right into the permanent custody order along with mom’s and dad’s, or dad’s and dad’s or mom’s and mom’s visitation rights, the custodial schedule will reflect the grandparents’ day or days, holidays, and they would be as the case law says a party for all purposes meaning that if one of the parents wouldn’t follow that schedule or both of them wouldn’t, they could go to court and seek an order for contempt. So what would it look like, it would be most commonly a day or two a month, a week or two in the summer, special times, just like all grandparents enjoy with their grandkids, or most all grandparents enjoy with their grandkids, on a more scheduled basis.

Jaime Davis: Right, so the difference is the court is gonna set out what that schedule might look like, you know, if little Jimmy is gonna live with mom 50 percent of the time and with mom or dad the other 50 percent of the time, then, you know, grandma and grandpa get this special time. Maybe they get a Saturday a month and then maybe they get some holiday time, is, is that what I’m hearing?

Stephanie Gibbs: Exactly right, and it would be carved out of mom’s time typically or dad’s time or both parent’s time. So the parent who would have custody of the child would bring the child to the grandparents’ house or to the other meeting place that the two of them select, grandma and grandpa would pick up little Jimmy, would take Jimmy home with them to play or to an amusement park or to a movie or to a bookstore or to Marble’s, and then they would return little Jimmy at the time set forth in the court order.

Jaime Davis: So –

Stephanie Gibbs: And that’s what it would like.

Jaime Davis: So, it’s not like the grandparents, let’s say that they are dad’s parents.

Stephanie Gibbs: Mm hmm.

Jaime Davis: They are not gonna be taking part of dad’s time necessarily, they’re gonna have their own independent time from dad and from mom, is that right?

Stephanie Gibbs: That’s correct, and if they want dad around during the visit, why not. It’s like having any other relatives around.

Jaime Davis: Sure.

Stephanie Gibbs: But it is strictly speaking their time with the child, and if they don’t want dad around, they can decide that as well. It, it depends a lot on relationships. There, these types of cases are very relationship centric if that makes sense.

Jaime Davis: Sure.

Stephanie Gibbs: You have to read and understand and predict how people will act in the future and that’s not always easy.

Jaime Davis: And if the parties want to settle this type of issue, that would require both parents to agree on the amount of time, and the logistics of the time that the grandparents would spend with the child, right?

Stephanie Gibbs: It would take mom, dad, and the grandparents agreeing to a schedule. It’s typically not a lot of time for grandparents. But of course, just as most court orders say, if the parties agree otherwise they can decide to vary from –

Jaime Davis: Right.

Stephanie Gibbs: – the custodial schedule set forth in the permanent order.

Jaime Davis: Stephanie, thank you so much for talking to us today. I think this has been a really great informative discussion about grandparent visitation.

Stephanie Gibbs: Jaime, thank you for inviting me. I just, I love practicing in this area of law. I really love helping grandparents or helping parents, and thank you so much.

Jaime Davis: If any of our listeners would like to get in touch with you to further discuss grandparent or custody issues, or really any other issue, what is the best way for them to contact you?

Stephanie Gibbs: Well, call Gailor Hunt, that’s 919-367-1512, and I’m usually there if I’m not in court.

Jaime Davis: Thanks again, Stephanie, I really appreciate your being here today.

Stephanie Gibbs: Thanks, Jaime.

Jaime Davis: I hope you all enjoyed this episode of A Year and a Day. If you have any suggestions for future episodes I would love to hear from you. You can email me at jdavis@divorceistough.com. If you like what you heard today, please leave us a review on iTunes. As a reminder, while in my role as a lawyer, my job is to give folks legal advice. The purpose of this podcast is not do that. This podcast is for general informational purposes only, should not be used as legal advice, and is specific to the law in North Carolina. If you have questions before you take any action you should consult with a lawyer who is licensed in your state.

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