Grandparents' Rights Introduced

Special Report - March 21, 2011

A bill that would expand grandparent visitation rights in North Carolina and weaken parental rights has been introduced in the General Assembly and is scheduled for consideration in a House subcommittee this week. HB 239-Grandparents’ Visitation Rights, sponsored by Representatives William Brisson (D-Bladen), Julia Howard (R-Davie), and Pat Hurley (R-Randolph), was introduced on March 8 and currently resides in the House Judiciary Subcommittee C, where it is scheduled for consideration on Wednesday, March 23.

The bill would change North Carolina law so that: “The court shall determine grandparent visitation rights on a case-by-case basis.” It would allow a biological grandparent to “institute an action or proceeding for visitation rights” of a grandchild except in a situation where that child has been adopted by parents not related to the child, and the parental rights of both the child’s biological parents have been terminated through that adoption. The measure states that the court will determine grandparent visitation rights based on “the best interest of the child.” It also institutes seven determining factors for the court to consider in determining the “best interest” of the child, including the “the reasonableness or lack of reasonableness of the custodial parent in allowing, restricting, or denying visitation to the grandparent in the past,” and “whether the circumstances and amount of visitation will substantially interfere with the right of the parent to exercise his or her parental authority.”

Currently, North Carolina law clearly establishes that grandparents do not have standing to sue for visitation, when custody is not in dispute and the child is living with the natural parents in an intact family.  Instead the law currently allows biological grandparents to institute an action for visitation of a grandchild under certain conditions: 1) if the parents are divorcing and the custody of a child is at issue in an ongoing proceeding; or 2) if the custody of a child has been determined, the grandparents may petition the court to amend the visitation with a motion and showing of changed circumstances. The court may, in its discretion, amend the visitation as it deems appropriate; or 3) if the child is adopted by a stepparent or relative and a substantial relationship exists between the grandparent and the child.

A Legislative Study on Grandparents’ Visitation Rights was conducted in 1996, and legislation to expand the visitation rights of grandparents has been rejected in the NC General Assembly since the mid 1990s. The N.C. Supreme Court has ruled that parents have a ‘”paramount right … to custody, care and nurture of their children,” and that right includes the right to determine with whom their children shall associate.

“Broadening the circumstances in which grandparents may petition the court for visitation of children living in intact families would force parents to go before a judge to explain their parental decisions, and significantly interfere with their fundamental right to make care, custody and control determinations for their children,” according to Jere Royall, counsel for the North Carolina Family Policy Council. “Such claims also would force unwarranted public exposure of private family issues and empower the court with very limited information to substitute its own determination for that of the parents.”

Royall continued, “It is unfortunate when family situations arise that cause parents to deny grandparents the ability to visit their grandchildren, but a parental decision to do so should not create standing for the third-party to seek a judicial determination as to the reasonableness of the decision.  The highest courts of both the State of North Carolina and the United States of America have consistently recognized as fundamental the right of parents to raise their children.” 

Related resources:
The Legislative Session after Crossover - FNC, July/August 2009
Bill Challenges Parents' Rights - April 8, 2009
"Parental Rights: Why They Matter and How They Are Being Ignored," - NCFPC Findings, 2003

Copyright © 2011. North Carolina Family Policy Council. All rights reserved.

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