Grandparents’ Rights to Custody and Visitation in NC

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Grandparent Rights

At Zach Jackson Law, we are frequently asked about grandparents’ rights in North Carolina.  Pursuant to the Fourteenth Amendment, parents have the fundamental right to direct the upbringing of their children. This means that under most circumstances, parents have the right to prevent individuals from visiting with their children. However, the courts have recognized that grandparents and other individuals often assume responsibilities of a parental nature. It is important to protect the children who will inevitably form a close bond with these individuals. Therefore, under certain circumstances, grandparents and other individuals may obtain court ordered visitation or custody with a minor child.

Grandparent Visitation

If the minor child is living in an intact family and if there are no allegations that a parent is unfit, neglectful, or guilty of some other misconduct, the courts cannot award visitation or custody to a third party. In North Carolina, if the parents of the minor child have a pending action in regards to custody of the minor child, this action triggers the grandparents’ rights. The grandparents may intervene in this action and request court ordered visitation. If the courts enter a permanent custody order, the grandparents will not have the opportunity to petition the courts for visitation again unless there is a showing of a substantial change in circumstances. Therefore, if your child has an ongoing custody or visitation dispute over your grandchild, it is important to immediately consult with a family law attorney to determine if you should take legal action to protect your relationship with your grandchild.

Grandparent and Third Party Custody

North Carolina allows a person or organization to file an independent action for custody of a child if it is alleged that the parent is unfit, has died, or has engaged in conduct inconsistent with the parent’s parental status.  Behaviors that could result in a court concluding that a parent is unfit include child abuse, drug addiction, alcohol abuse, mental illness, and criminal conduct. The court may find that the parents have engaged in conduct inconsistent with their parental status if they have relied on a grandparent or third party to be the primary caregiver for the child.

At Zach Jackson Law, we are experienced in and passionate about protecting grandparent rights.  If you or someone you know is seeking visitation or custody, please contact our office for a consultation.

Termination of Parental Rights

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Having ones parental rights terminated has been referred to as the “death penalty” of family law cases. When a petition for the termination of parental rights is granted, all rights that arise from the parental relationship end. The parent has no rights whatsoever to visit with or communicate with his or her minor child.

 Filing the Petition

A termination for parental rights proceeding begins with the filing of a petition. The party that files the petition is referred to as the petitioner. North Carolina General Statute code section 7B-1103 provides a detailed explanation of who is eligible to file a petition. Typically, one parent files the petition for termination of parental rights against the other parent. Under certain circumstances, statute allows a non-parent to file a petition for termination of parental rights against one or both parents. If an individual has lived with the child for two or more years, has been appointed by the courts as the guardian for the child, or has filed a petition to adopt the juvenile, then that individual may be able to file a petition for termination of parental rights. If the Department of Social Services is awarded custody of the minor child, they may also file a petition for termination of parental rights.

A parent cannot file a petition to have his or her own parental rights terminated. Occasionally, a parent desires to have his or her parental rights terminated in an effort to avoid paying child support. There are a multitude of options available for a parent that is unable to pay child support in accordance with a court order. Unilaterally deciding to terminate your rights and obligations to your child, however, is not an option.

Responding to the Petition

The parent whose parental rights are being challenged is referred to as the respondent. After a petition has been filed, the respondent can hire an attorney, or if he or she cannot afford an attorney, the court may appoint an attorney. The respondent has thirty days to file an answer to the petition for termination of parental rights. If the respondent fails to provide an answer, the court may, in its discretion, issue an order terminating his or her rights to the juvenile.

If the respondent files an answer alleging that his or her parental rights should not be terminated, the petitioner must overcome a two-part test. The first step is to prove that there are grounds to terminate his or her parental fights, and the second step is to prove that terminating the parental rights is in the best interest of the minor child. At this stage, the court will appoint a guardian ad litem. It will be the responsibility of the guardian ad litem to determine what is in the best interest of the juvenile.

 Burden of Proof

North Carolina General Statute 7B-1111 provides that the petitioner must prove grounds by “clear and convincing evidence”. This is a higher burden of proof than one will typically encounter in a civil proceeding.

 Grounds for Termination of Parental Rights

To prove that there are grounds to terminate parental rights, the petitioner must prove any one of the following:

(1) The parent has abused or neglected the juvenile;

(2) The parent has willfully left the juvenile in foster care or placement outside the home for more than twelve months without making reasonable progress to rectify the conditions that led to the removal of the juvenile;

(3) The minor child has been placed in the custody of the department of social services and for six months prior to the filing of the petition, the parent has willfully failed to pay for the support of the juvenile;

(4) One parent has received custody of the minor child and the other parent has failed without justification to pay for the care, support, and education of the juvenile as required by said decree or custody agreement;

(5) The father of the minor child, born out of wedlock, has not made any attempt to establish paternity of the minor child;

(6) The parent is incapable of providing for the care and supervision of the juvenile, and the incapacity will continue fore the foreseeable future;

(7) The parent has willfully abandoned the juvenile for six consecutive months prior to the filing of the petition, or the parent has willfully abandoned an infant for sixty consecutive days prior the filing of the petition;

(8) The parent murdered, attempted to murder, or seriously harmed another child of the parent or another child residing in the home with the minor child;

(9) The parent’s rights have previously been involuntarily terminated and the parent continues to lack the ability or willingness to establish a safe home;

(10) the parent relinquished the juvenile to the department of social services for the purpose of adoption; or

(11) the parent has been convicted of a sexually violent offense that resulted in the conception of parental rights.

 Best Interest of the Juvenile

If any of the grounds mentioned above are satisfied, the petitioner must next prove that termination of parental rights is in the best interest of the minor child. At this stage, the court can consider any relevant evidence, including hearsay, in order to determine that which is in the best interest of the juvenile. The court will consider the age of the juvenile, the likelihood that someone else will adopt the juvenile, whether or not terminating the parent’s rights will in some way improve or facilitate a permanent plan for the juvenile, the bond between the parent and the juvenile, the relationship between the parent and the juvenile, and any other relevant considerations. At this stage, the opinion of the guardian ad litem is often critical in determining that which is in the best interest of the juvenile.

Effect of Termination of Parental Rights

If the petitioner is successful in proving by clear and cogent evidence that grounds exist to terminate the mother or father’s parental rights, and the court finds that termination of parental rights is in the best interest of the juvenile, all rights and obligations of the parent to the juvenile arising from the paternal relationship end. The parent no longer has the right to contact or visit with the juvenile, and the parent no longer has an obligation to pay child support for the juvenile. The parent may appeal the decision, or under limited circumstances, the parent’s rights may be reinstated.

At Zach Jackson Law, we have successfully represented both petitioners and respondents in termination of parental rights proceedings. Due to the severity of these proceedings, it is absolutely critical that you have experienced and competent legal counsel. If you or someone you know desires to terminate the parental rights of a parent, or if your parental rights are being challenged, do not hesitate to contact Zach Jackson Law.

HOW IS CHILD CUSTODY DETERMINED?

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North Carolina General Statute 50-13.2 states, “An order for custody must include findings of fact which support the determination of what is in the ‘best interest’ of the child.” The courts have considered a number of different factors when determining child custody and the best interest of the child. The list below contains some of the most common factors considered by the courts when making a determination on child custody:

  1. Who is the primary caregiver for the child?  Custody of the child will typically be awarded to the party that more often tends to the child’s basic wants and needs.
  2. Who is the disciplinarian for the child, and is the discipline exercised by that parent age appropriate? Child Custody will rarely be given to a parent that uses excessive or unusual discipline.  However, if a parent is unable to discipline a child appropriately, this can be factor against that parent in a child custody proceeding.
  3. Who communicates with important figures in the child’s life including teachers, coaches, other parents, and health care providers? These people are often called to testify in child custody proceedings.  The opinions of these objective witnesses is often an extremely important factor in determining child custody.
  4. Which parent would be a better roll model for the minor child?
  5. Who typically shops for the child? Which parent buys groceries, clothes, and toys for the child? In a child custody proceeding, these types of factors will assist the court in determining the primary caregiver for the child.
  6. Who does the child want to live with? As the child grows older, this factor will become increasingly more important.  The court may ignore this factor in a child custody hearing if the child is too young to give an informed opinion, or if the court feels that the child wants to live with the parent for the wrong reasons.
  7. Has the child lived exclusively with either parent for any period of time?
  8. Has either parent demonstrated a lack of morals? For example, does either parent have an extensive criminal record? Has either parent been convicted of domestic violence or a sex offense?  In a child custody cases, these types of issues are typically detrimental.
  9. Has either parent alienated the child from the other parent? This is one of the most significant yet overlooked issues in a child custody case. If you run into opposition from the other parent when you attempt to appropriately discipline the child, assist the child with homework, pick out clothes, and schedule appointments; address this issue immediately.
  10. Does one parent have a history of being vengeful towards the other parent?
  11. Has either parent committed adultery?
  12. Does either parent have a history of alcohol, gambling, or illicit drugs?
  13. Which parent will be able to provide the child with more suitable living accommodations? Will the child have his own room and age appropriate decorations and furnishings? Will the house be cigarette smoke free? Are there roommates or a large number of people in the house? Are their pets that may be dangerous?
  14. Which parent will provide for the child’s physical well being? Which parent is more likely to ensure the child gets an adequate amount of exercise, nutritious meals, and rest?
  15. Which parent cleans up for the child? Who does the child’s laundry, cleans his or her bathroom, and washes his or her dishes?
  16. Does the child have a disability? If so, is one parent in a better position to tend to that disability?
  17. Which parent would provide a higher quality education for the child?  If one child lives in a significantly better school district, this may impact a judge’s decision.  Often, this issue will have a significant impact on where the child wants to live.
  18. Does one parent live an inconvenient distance from the child’s current school?
  19. Is one parent more involved with the child’s education? Does one parent attend teacher conferences and school activities more often than the other?
  20. Does one parent tend to the child’s hygiene more often than the other?
  21. Does either parent have poor relationships with important people in the child’s life?
  22. Does either parent take the child around inappropriate people? For example, does either parent take the child around people that are impaired by alcohol, have a significant criminal record, or speak badly about the other parent?
  23. Does one parent relate better to the child’s sex? This is a factor that is often brought up in child custody cases.  The parent of the same sex of the child is an extremely important roll model for the minor child.  As hard as it may be, the other parent should keep in mind the importance of facilitating and supporting the relationship with the same-sex parent.
  24. Which parent lives in a safer neighborhood?
  25. Which parent is more affectionate to the child?
  26. Which parent spends more quality time with the child?
  27. Has either parent stayed home with the child?  If one parent supports the family financially, and the other parent stays home with the child, it may be difficult for the working parent to gain custody of the minor child.
  28. Which parent typically plays with the child?
  29. Is either parent more involved in the child’s activities? Is either parent more involved in an activity that is particularly important to the child?
  30. Does one parent show a greater willingness to assist the child with special training such as art lessons or sports?
  31. Is one parent more capable of co-parenting with the other parent?  Often, this appears to be the issue that changes a judge’s mind when awarding custody.  If one parent is clearly the primary care giver, that parent occasionally develops a sense of entitlement over the child.  If the court feels that the child cannot enjoy a healthy relationship with both parents due to this sense of entitlement, the court may decide to give the child to the other parent.
  32. Has one parent demonstrated an inability to abide by the court’s orders?
  33. Is one parent in a better position to provide financial support for the child?
  34. Is one parent in a better position to ensure the child has a relationship with his or her siblings?
  35. Do the facts suggest that one parent is seeking custody to avoid child support?

 

A parent seeking custody or additional visitation should read this list carefully. Do any of the above factors work against you? What can you do to improve the issue? Would making that change actually make life better for your child? If so, make the change. If not, do what is in your child’s best interest. For example, if the mother is better at shopping for the child’s clothes, the father should not attempt to takeover just to bolster his case. If the father is better at assisting the child with homework, the mother should not try to takeover to bolster her case.

 

Do not ever conduct yourself as though you hate the opposing party more than you love your child. Do not focus on maximizing the time that you spend with your child and minimizing the time that the opposing party spends with your child. Instead, focus solely on coming up with a custody and visitation schedule that is in the best interest of your child.

 

At Zach Jackson Law, we can assist you with all aspects of a child custody case.  In addition to guiding you through the legal proceedings, we will give you constant guidance on acting in the best interest of the child.  We will assist you in negotiating a parenting agreement, and if it is appropriate, we will assist in scheduling a free mediation between you and your spouse.  If the opposing party is unwilling to compromise, at Zach Jackson Law, we are also ready to fight zealously to ensure that your rights are upheld.

Are You Entitled to a Domestic Violence Protective Order?

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Have you or your child been harmed by someone with whom you have a personal relationship? Are you genuinely concerned that this person may harm you in the near future? This guide will give you the basic information that you need to receive a Domestic Violence Protective Order in North Carolina.

Are You a Victim of Domestic Violence?

According to NCGS 50-1, you are the victim of Domestic Violence if someone that you have a personal relationship with is guilty of any of the following:

(1) causing you or a child that resides in your custody bodily harm;

(2) attempting to harm you or the child in your custody;

(3) sexually assaulting you or your minor child;

(4) continuously harassing you or your child to the point that they are causing you or your child substantial emotional distress; or

(5) placing you or your child in imminent fear of bodily injury to the point of causing you or your child substantial emotional distress.

Do You Have a Personal Relationship with the Perpetrator Described Above?

In order to receive a Domestic Violence Protective Order, you must have a “personal relationship” with the party guilty of at least one of the acts listed above. A “personal relationship” exists in the event of any of the following:

(1) The party is a former spouse;

(2) The party is a current or former household member;

(3) You are the party’s parent or child and the party is over 16 years old;

(4) You have a child with the party;

(5) You have been in a dating or romantic relationship with the party.

If there is a personal relationship as defined in this section and there is domestic violence as described above, you are entitled to a Domestic Violence Protective Order.

What is a Domestic Violence Protective Order?

A Domestic Violence Protective Order (aka 50B or DVPO) is a civil order that provides protection from someone with whom you had a “personal relationship”. Often, the order will prevent the person from having any contact with you for one year. If the person violates the order, they can be convicted of an A1 misdemeanor and receive up to 150 days in jail per incident.

How do I get a Domestic Violence Protective Order?

Step 1. Meet with an attorney. Prior to meeting with your attorney, write down every incident of domestic violence in explicit detail.  Do your best to state the time and date.  Also, gather or make a list of any evidence that supports your allegations.

Step 2. Go to the clerk of court or magistrate to get and file the necessary forms.

Step 3. Request an ex parte temporary order for immediate protection.

Step 4. File the order with the clerk of court, and have a copy served on the opposing party.

Step 5. There will be a hearing on the issue unless the opposing party consents to the restraining order remaining in effect.

 

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