As unfortunate as it may be, I will sometimes receive calls from other attorneys who represent a parent who has just passed away and the question inevitably will be “can the grandparents sue for custody now or are they too late?” The answer is generally they are too late. Therefore, it is best for grandparents to file a motion for intervention and for grandparent visitation, which they are entitled to under North Carolina law as early as possible.
While the terms visitation and custody may be synonymous in North Carolina’s courts, those two terms can have very different legislative meanings. A special statute has been carved out for grandparent visitation that is different than custody and allows for grandparents to intervene for limited visitation rights during ongoing custody disputes.
The grandparents must file to intervene while the litigation between the natural or adoptive parents is ongoing and intervention is discretionary. Once granted intervention, however, the grandparents will be parties for all time.
WHEN CAN’T GRANDPARENTS INTERVENE: “INTACT FAMILY RULE”
Grandparents cannot intervene if there is an intact family or if there is no pending litigation. An intact family is a family that is still together or not separated; a family that has reconciled following a separation or following litigation; a family that had pending litigation but is now operating under a permanent order, thus, litigation has resolved; or a family in which one of the parties died prior to the grandparent’s filing for intervention.
North Carolina recognizes the single parent family as an intact family when the other parent has died even in the midst of litigation.
WHEN TO FILE TO INTERVENE AND FOR VISITATION
Grandparents can file to intervene as soon as one of the parents has initiated a lawsuit for custody. Grandparents may also file to intervene prior to a hearing on permanent custody even if there is a temporary custody order, because a temporary order is interlocutory. Finally, grandparents may file to intervene if one of the parties’ files a motion to modify custody or a motion for emergency custody – anything that restarts custody litigation.
Once grandparents file to intervene they have reserved their right to be heard on the issue of intervention even if one of the parents dies during the course of litigation. It does not guarantee that the judge will grant the intervention, but it gives them a chance. If grandparents have not filed a motion to intervene prior to litigation resolution or death of one of the parties, then they are out of luck. The best advice that an attorney can give to a grandparent client about getting involved in their child’s custody lawsuit is to get involved sooner than later if they truly fear that they may be cut out of their grandchild’s life in the event something tragic happens.
In the event that a grandparent cannot sue for visitation can they still sue for custody? Only in the limited situation where the living parents are unfit, have neglected their children or have acted inconsistent with their constitutionally protected status as parents. North Carolina statute allows for “any parent, relative, or other person, agency, organization or institution claiming the right to custody of a minor child,” to sue for custody of a minor child but that right is very limited. The “Intact Family Rule” does not apply in cases of custody where neglect, unfitness or acts inconsistent are alleged.
However, grandparents or any other third party suing for custody would have to allege unfitness, neglect or acts inconsistent as to both living parents in order to have standing to sue. Therefore, when suing for actual custody versus grandparent visitation one must prove and allege unfitness, neglect or acts inconsistent with constitutionally protected rights against all living natural or adoptive parents before the court can even consider best interests. Additionally, one must have a substantial relationship with the minor child in order to prevail. Therefore, it can be a tough hill to climb.
It can also be expensive and emotionally damaging to the relationship between the third party and the parents to the action. Your clients will have to weigh the costs of becoming involved versus the loss of a grandchild in the event the parties would try to cut them out later.