There are four statutes that grandparents can use to ask the Court to grant custody and/or visitation:
1. NCGS 50-13.1 - to prevail under this statute, a grandparent would need to establish that the natural parents are 'unfit' or have acted in a manner inconsistent with their constitutionally-protected status. This is a high bar, and it is fairly difficult to prevail under this statute absent some credible evidence of child abuse, debilitating drug addiction, severe neglect or some other fairly extreme circumstance.
2. NCGS 50-13.2(b1) - this statute is one that is used in situations where there is an 'ongoing' custody dispute, meaning usually that one parent has filed a custody action against the other parent and the case is currently pending and awaiting trial. In that instance, grandparents can attempt to intervene and ask the Court to grant visitation. The most recent caselaw on this issue, Alexander v. Alexander, 276 N.C. App. 148 (2021), held that there is a presumption that parents' wishes regarding visitation control, but that this presumption can be rebutted. If successfully rebutted, the grandparent visitation must be limited such that it doesn't 'adversely affect the parent/child relationship.'
3. NCGS 50-13.5(j) - this statute is very similar in purpose to NCGS 50-13.2(b1) above, but it applies in the context where one parent has filed a custody modification action against the other parent in order to change a currently-existing custody order. As with NCGS 50-13.2(b1), use of this statute requires that there be a current action pending. In this instance, a grandparent can ask the court to allow him or her to intervene, and if successful, can make arguments that 1) there has been a substantial change of circumstances since the entry of the prior custody order that impacts the minor child or children and 2) that he or she is entitled to visitation with the grandchild or grandchildren.
4. NCGS 50-13.2A - this statute applies in the context of a step-parent or relative adoption. In that instance, a grandparent can ask the Court for visitation provided that the adoption action is still pending.
It is important to understand that three of the grandparent visitation statutes require a pending action in order to use the relevant statutes to try to get visitation with a grandchild or grandchildren. The only one that doesn't require a pending action is NCGS 50-13.1, and as noted above, the burden of proof required to obtain access to a grandchild or grandchildren under that statute is extremely high.
The statutory framework regarding grandparent visitation favors those who timely intervene during ongoing custody actions between parents. Grandparents who don't intervene while custody actions are pending in North Carolina face very long odds of being awarded visitation with a grandchild or grandchildren. The practical lesson is to consult wtih an attorney during custody litigation and timely intervene if you want to maximize your chance to be awarded visitation.
