In North Carolina, like every other state, the Fourteenth Amendment of the US Constitution gives parents the implicit right to care and nurture their children. Parents, not the government, are presumed to have the child’s best interest in mind when making choices about who may see their children and when, including custody and visitation decisions.
Recently introduced legislation in North Carolina, however, may erode parents rights to make these decisions.
SB 531/HB239, Grandparents’ Visitation Rights, has been introduced in the NC General Assembly to provide standing to biological grandparents seeking court-ordered visitation rights. This bill would chip away at parental rights. Under this legislation, the court will determine visitation rights on a “case-by-case basis,” bearing in mind the time, place, and circumstances of visitation. Whether the visitation is in the best interest of the child depends upon several factors including: a preexisting relationship between the grandparent and the child; the willingness of the child to develop a relationship with the grandparent; the reasonableness of the custodial parent in allowing or denying visitation to the grandparent in the past; mental and physical health of the child and grandparent; and finally, whether the visitation would substantially interfere with the right of the parent to exercise his parental authority.
There is a rebuttable presumption, a presumed truth unless proved otherwise, that grandparent visitation is not in the best interest of the child if both biological parents agree that the grandparents should not be awarded visitation. However, the factors outlined in SB531/HB239 provide incredible leeway for the court to determine whether a grandparent should be allowed visitation rights. The reasonableness factor of a custodial parent’s decision in allowing or denying visitation is particularly troubling. It is the parent’s choice whether or not to allow visitation – not the decision of the government and a judge.
Furthermore, it is most likely that the biological parents will not agree on visitation rights when there is familial conflict, more or less diminishing the rebuttable presumption that visitation is not in the best interest of the child. Parents fighting over their own custody rights are unlikely to agree on grandparent visitation, leaving the door open for grandparents to intervene and get a court-ordered judgment, bypassing the rights of the biological parents.
Moreover, such legislation would seemingly be in conflict with existing federal laws and legal precedent.
Under the Peterson Presumption (Peterson v. Rogers, 337 N.C. 397 (1994)), the parent will prevail in a custody dispute between a parent and non-parent, including grandparents, unless a judge finds the parent unfit, or that the parent has neglected the child or engaged in conduct inconsistent with his parental status.
So far, only in situations where the nuclear family is disrupted by divorce or a child is adopted by a stepparent or close relative, and there is a close relationship between the grandparent and child may a grandparent petition the courts for visitation rights. Grandparents carry the burden of proving visitation is in the best interest of the child.
Such a burden is relatively high. Under federal case law, as long as the parent is deemed fit, the parent’s judgment as to grandparent visitation is given special weight. Any further attempts to expand grandparents’ visitation rights have failed to date.
No doubt, divorce and familial turmoil can negatively impact the relationship between a grandparent and grandchild if a parent denies them access to their grandchildren. However, as difficult and painful as it may be, providing expanded court-ordered visitation rights to grandparents diminishes and intrudes upon the decision rights of parents to determine what is best for their children.
The legislature should refrain from intruding upon the decision rights of parents. There are already outlets in place to allow for grandparent visitation and even custody if it is truly in the best interest of the child. The state government need not meddle into the homes and lives of fit parents and their families.
I am a grandparent. I am a grandparent as parent. I believe in parents rights.
I can truly see both sides of this argument. My neighbors’s daughter died several years ago, and she was divorced due to an abusive relationship. She passed away 1 year after her divorce leaving behind a 6 year-old girl. The 6 year-old’s dad took custody right away, and wouldn’t allow the little girl to stay for her mother’s funeral. He denied access to the child, and the grandmother was left heartbroken, as well as the little girl. The girl’s dad committed suicide 1 year later, and the little girl is being adopted by relatives of the grandmother, because she is 75, and cannot care for her full time. In this case, it was too bad the grandmother didn’t have any legal grounds to stand on, after the girl’s mother passed away.
I agree that the parents should have the ultimate say in who their child spends time with. But circumstances should play a role if the judicial system has to be brought in. Let’s say for example that you have given your child everything needed to be a success (sent to college, bought cars, allowed the couple to stay with you when having a hard time). In other words you had a great relatinship with your child until he/she marrys someone and then he/she tries to aleinate your child from you. Because your child was brought up to believe that you should make your marriage your priority, your child then starts to exhibit the behaviors of the spouse (isolation, withdrawal, etc.) then tells you that he/she has to get permission from the spouse before he/she can let you interact with your grandchild unless it is convienent for him/her. Is that considered fair to the grandparents?
While we all sympathize with loving grandparents who are denied access to their grandchildren, you are right on target that this bill should be stopped. Relationships cannot be legislated. And this measure would not empower grandparents so much as it would add to the rights of the courts and the states at the expense of parents. Thanks for keeping your supporters informed on this issue.
This situation is very difficult for everyone involved including the child(ren). There can be extenuating circumstances to which the court are not aware. Courts are too often just PC and not caring enough to find out the reasons behind the problem. I do agree with Luanne that parents often charged with expenses that are not their fault. Rather than a broadstroke painted for everyone to follow there needs to be individual decisions. The state should not be the nanny for all of our children and often can make everything worse for children. The child should have the most consideration in all decisions.
This sounds like a reasonable bill to me, as it leaves the presumption in favor of parents while allowing for the reality that while kids aren’t allowed to second-guess their own parents’ judgment, courts sometimes should. In any event, the 14th Amendment argument is just plan lame. Live by strict constructionism, die by strict constructionism.
If this was the worst “bad” bill you could find, NC is in much better shape than I thought.
I grew up as a child in a grandparent visitation case (McIntyre v McIntyre). When a family matter goes to court, it is impossible to have an open, trusting relationship again. I was mortified by some of the stunts that my dad’s parents pulled when I was a teenager, and I have no desire to reestablish contact with them even though I have been a legal adult and can make my own decisions now for 8 years.
This bill opens the door to a host of potential issues. If grandparents are granted visitation rights say 1 weekend a month, what if the parents’ jobs move the family across the country? Whose burden is it to pay for the plane ticket to grant visitation once a month? Do the parents have to turn down opportunities because they are tied to the visitation terms? If grandparents are granted visitation, do they have a financial responsibility to help raise the child? Correct me if I’m wrong, but in a divorce case, doesn’t a parent lose visitation rights if they do not pay child support? Shouldn’t it work the same way here?
A strong family unit is the backbone of America. When the courts interfere, they are weakening what makes our country special. Family drama should not be decided in the court when it concerns a functioning intact family.
I am a loving grandparent who has an established relationship with my grandchildren. I have been denied access to my 7 yr. old granddaughter and she is so confused. Her mother is deceased (my daughter). The granddaughter doesn’t live with her father and hasn’t since she was a yr. old. He placed her with my ex-husband and his wife because he knew if he abandoned her at my house for 6 yrs. I would file for custody. I have seen her almost every weekend since she started living with them unless he called and told them I couldn’t see her unless I complied with whatever it was he wanted from me at the time! I was supposed to see her last weekend and was told that until I start treating all of his children the same I would not be able to see her anymore. I called her on Sunday and she said,”Mommy, why didn’t you come and get me this weekend?” The Dad wanted me to allow my almost 17 yr. old grandson to move in with me because he was kicking him out of his house for stealing. I let the 16 yr. old granddaughter move in at 14 yrs. and stay for 15 months. I could not get her to mind me and when I tried to take her phone as a consequence of misbehavior she refused. I am almost 60 yrs. old and can’t enforce any kind of consequences for misconduct. She had brought drugs into my home repeatedly so I told her she would have to go back to her Dad. The other grandparents had already tried to keep her with the same results. I was a last resort. They have also tried with the grandson and again I am his last resort. I was going to tell him that I would help with the grandson but that he couldn’t move in but when I told him grandson couldn’t move in he cursed me, called me names and hung up on me. Now because Dad has custody he is not allowing 7 yr. old who wants to see me to spend time with me. I don’t feel he this is right. Could all of you who are against grandparents visitation please give me your opinions on how this is in 7 yr. old’s best interest.
P.S. Dad has a long history of alcoholism, drugs, and felonies!
what happens when your daughter doesnt work and stays in one house from another every week dragging her 7 month old baby with her and dss tells me nothing i can do oh and ty to the tax payers her give her food stamps and welfare wayy to goo north carolina