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Grandparents’ Rights in Custody Cases

When parents separate and divorce, grandparents sometimes get caught in the middle and opportunities to spend time with their grandchildren may be restricted by one or both parents. In those cases if grandparents don’t become legally involved in a custody case, they risk losing all rights to see their grandchildren in the future. One way that grandparents may maintain the special bond with their grandchildren is to “intervene” – that is, become parties to – a pending custody case so that they have a legal and enforceable right to visit their grandchildren after a divorce.

Grandparents may intervene in a custody case before the court reaches a decision on custody. After the court’s decision has been reached, grandparents may not intervene unless one of the parents later seeks to modify the initial custody order. Grandparents have a right to intervene in such cases, so long as the case is pending.

To intervene, the grandparent would ask the court to establish custody or visitation rights with the grandchild which are independent of the goodwill of the custodial parent. When a grandparent moves to intervene, the court must decide whether a “substantial relationship” exists between the grandparent and child, and whether it would be in the child’s best interest to order that a grandparent spend time with the child.

In a handful of North Carolina cases, grandparents lost their right to ever visit their grandchildren after a parent died following a final custody decision where the grandparents did not intervene and the surviving parent did not want the visits to occur. Under the law, the surviving parent and children constituted an intact family, and the courts have generally held in those cases that the grandparents had no right to intervene and the court no longer had jurisdiction to allow the grandparent to do so.

In a custody situation grandparents should consult an attorney with experience in grandparents’ custody and visitation rights to determine the best course for protecting that special bond with their grandchildren.