Note: This file contains the text of an article which appeared in Popular Government, vol. 63, no. 3, Spring 1998, 13–20. Delineations within the text indicating titles and headings are preserved. No attempt has been made to display graphic images or pagination of the typeset article. Footnotes appear in brackets at the reference point in the text. Figures and tables have been omitted. A printed copy of this article may be obtained for a photocopying fee of $.10 per page with a $2.00 minimum.
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The author is an Institute of Government faculty member who specializes in judicial education and family law.
The relationship between Molly and her parents has been strained since the day she decided to marry Joe. Molly’s parents do not agree with Joe’s outlook on life, particularly his attitude that a steady job is much more trouble than it is worth. After Molly and Joe were married, they had little contact with Molly’s parents until their children were born. Then Molly’s parents, who lived nearby, spent a lot of time with the children because Molly and Joe could not afford child care and because Molly’s parents enjoyed looking after the children.
As the children grew older, however, arguments between Molly’s parents and Joe became increasingly frequent. Joe thinks that children should rarely, if ever, be disciplined. Molly’s parents, on the other hand, believe that sparing the rod will spoil the child. After one particularly unpleasant disagreement about discipline, which took place in front of the children, Molly told her parents that they would no longer be allowed to spend time with the children.
Both the grandparents and the children are upset about Molly’s decision, but Molly sincerely believes that continuing to expose the children to the conflict between their father and her parents would be harmful to them. The grandparents want to ask the court to force Molly and Joe to allow them to see the children.
Should a court have the legal authority to order Molly and Joe to allow the children to spend time with the grandparents? Or should the law protect Molly and Joe’s authority to decide with whom their children spend time, free from governmental (that is, judicial) interference? If a court hears the grandparents’ suit, what weight must it give to the wishes of the parents?
This article reviews the current national trend toward giving grandparents expanded legal rights of visitation with minor grandchildren, and it examines the present state of the law on this issue in North Carolina. The article summarizes the protected legal status of parents in North Carolina when a nonparent seeks custody of or visitation with their minor children, and then discusses the exception to this status created by the current North Carolina statutes on visitation by grandparents. Finally, the article reviews a recent recommendation from a legislative study commission that the rights of grandparents in North Carolina be expanded.
Until the 1970s state legislatures had never addressed the issue of grandparents’ rights to visit minor grandchildren. Further, courts refused to order parents [1] to allow visitation. As one North Carolina court explained,
The fact that . . . grandparents love [a] child is no cause to give them a legally enforceable right to have the child visit with them one weekend a month, or any other time. It is surely to be desired that [a] child will be able to enjoy the love and affection of her grandparents and that they in turn will be able to enjoy the love and affection of the child. But this desire does not justify interfering with the proper and normal parent-child relationship. [2]
The reasons for this judicial policy have been summarized as follows:
“(1) Ordinarily, the parent’s obligation to allow the grandparents visitation is a moral one, not a legal one, (2) judicial enforcement of a grandparent’s visitation rights would divide parental authority, thereby hindering it, (3) the best interests of the child are not furthered by forcing the child into the center of conflict between the parent and the grandparents, (4) where there is conflict between the grandparent and parent, the parent alone should be the judge without having to account to any one for his motives in denying visitation, and (5) the ties of nature are the only efficacious means of restoring normal family relations and not the coercive measures which follow judicial intervention.”[3]
However, in the 1970s and 1980s, legislatures in all fifty states enacted statutes that in limited circumstances allow grandparents to petition for court-ordered visitation. [4] In 1983 Congress responded to this national trend by calling for the adoption of a uniform state act granting visitation rights to grandparents. [5] To date, however, no such act has been created.
Commentators vary in their opinions about the reasons for the public interest in expanding grandparents’ legal rights. Most point to the changing nature of American families over the past twenty years, largely due to more children living in single-parent homes, more stepfamilies, and the growing estrangement of extended families. In the face of such trends, some commentators argue that the public views governmental support of relationships between grandparents and grandchildren as an effective method of promoting traditional family values and providing additional, stable adult support for children. [6] Other commentators contend that grandparent visitation statutes are primarily the result of the growing number of grandparents in the country and their increased political activity on both a state and a national level. [7]
Grandparent visitation statutes differ significantly from state to state. However, all of them allow courts to impose visitation on objecting parents only when a judge determines that the visitation is in the grandchild’s best interest. Further, most allow courts to order visitation only when there has been a disruption in the nuclear family—through divorce, separation, or death, for example—or when visitation is necessary to protect a child from physical or emotional harm. [8] So, in the example introduced at the beginning of this article, in most states Molly’s parents would not have the right to seek court-ordered visitation because Molly and Joe are an intact family unit. However, if Molly died or she and Joe divorced, in most states Molly’s parents could seek court-ordered visitation. [9]
In the late 1980s, grandparent organizations and others began to lobby state legislatures across the country to expand grandparents’ rights. [10] To date, at least seventeen states have enacted statutes that contain no restriction on the circumstances under which grandparents are eligible for visitation, apparently allowing it even when parents are an intact family unit. [11] Such statutes would allow Molly’s parents to seek a court review of Molly’s decision, even though Molly and Joe are married, live together, and agree that the grandparents should not spend time with the children. A court in a state with this kind of statute could order Molly and Joe to allow visitation if, in the judge’s opinion, such visitation would promote the grandchildren’s best interest.
Courts in states with expanded statutes are struggling to balance parents’ constitutionally protected rights to control with whom their children associate against society’s interest in encouraging and supporting the relationship between grandparents and grandchildren. Some state appellate courts have found the expanded statutes to be an unconstitutional infringement on parents’ rights. [12] Other state appellate courts, however, have found the intrusion into the intact family unit to be minimal and justified by the public interest in promoting extended familial relationships. [13]
Broad language in the North Carolina General Statutes seems to allow any person to petition a North Carolina court for custody of or visitation with a minor child on making an allegation that such custody or visitation is in the child’s best interest. Section 50-13.1(a) of the North Carolina General Statutes (G.S.) states that “[a]ny parent, relative, or other person, agency, organization or institution claiming the right to custody of [or visitation with] [14] a minor child may institute an action or proceeding for the custody [or visitation] of such child, as hereinafter provided,” and G.S. 50-13.2 mandates that courts enter such custody and visitation orders as “will best promote the interest and welfare of the child.” Similarly, numerous North Carolina appellate court opinions have held that, in awarding custody or visitation rights, judges have broad discretion to determine the environment that will “best encourage full development of a child’s physical, mental, emotional, moral and spiritual faculties.” [15]
However, North Carolina law also recognizes that “parents have the natural and legal right to the custody, companionship, control and bringing up of their . . . children, and the same being a natural and substantive right may not be interfered with by action of courts” [16] in the absence of “substantial and sufficient reasons.” [17] According to the North Carolina Supreme Court, both the Constitution of the United States and the Constitution of North Carolina protect a parent’s right to the companionship, the custody, the care, and the control of his or her child, including the right to control with whom the child associates. [18] This parental right is the counterpart to the responsibilities that society places on parents for the care of their children and is based on a presumption that parents will act in their children’s best interest. [19]
The North Carolina Supreme Court recently clarified the relationship between these apparently conflicting legal principles. In Price v.Howard,[20] the court held that, because of the constitutional protections afforded to parents, persons other than a child’s parents are not entitled to court-ordered custody of or visitation with a minor child unless the parents are unfit, have neglected the child’s welfare, or have otherwise “acted in a manner inconsistent with the constitutionally-protected status of parents.” [21] According to the court in Price,proof of such parental unfitness or misconduct establishes the substantial and sufficient reasons constitutionally necessary to justify court interference with parental rights. Without such proof, however, courts may not substitute the discretion of a judge for that of a parent regarding with whom a child should reside or visit. [22]
North Carolina law, however, does not clearly define when a parent is unfit or what parental actions represent conduct inconsistent with the constitutionally protected status of parents. The supreme court stated in Pricethat judges must make such determinations case by case. [23] Although proof of a parent’s physical or emotional abuse, abandonment, or inability to provide necessary care for a child is clearly sufficient cause to waive the parent’s constitutional protections, less extreme behavior must be considered in light of all other facts in a particular case. For example, in Pricethe court held that the mother may have waived her protected status by allowing her child to live with a third party for an extended period without making clear that she intended the living arrangement to be temporary. [24]
Proof of parental unfitness or misconduct allows a grandparent or another nonparent to petition the court for custody or visitation. [25] However, such proof does not give the petitioning party the right to custody or visitation. Rather, once proof is established, a judge may determine whether custody or visitation will serve the child’s best interest. [26]
North Carolina appellate courts have held that parents’ protected status allows them to deny a grandparent access to a grandchild. [27] In Molly and Joe’s case, there has been no allegation that they are unfit, have neglected the children, or have otherwise acted in a manner inconsistent with their protected status. Therefore Molly’s parents would not be entitled to custody of or visitation with the grandchildren.
Significantly, North Carolina courts also have held that single parents enjoy the same protected status as married parents. Accordingly the appellate courts have denied grandparents visitation rights when there was no allegation that a single parent had acted in a manner inconsistent with his or her protected status. [28]
The North Carolina Supreme Court has recognized that the state’s grandparent visitation statutes create exceptions to the protected status of parents. [29] North Carolina has three such statutes: G.S. 50-13.2(b1) and G.S. 50-13.5(j), enacted in 1981, [30] and G.S. 50-13.2A, enacted in 1985. [31] Like those in most other states, North Carolina’s statutes make grandparents eligible for visitation only when there has been a disruption of the nuclear family. [32]
G.S. 50-13.2(b1) allows a court to order visitation rights for grandparents as part of any other child custody order, in such cases “as the court, in its discretion, deems appropriate.” The statute does not allow grandparents to initiate a court action for custody or visitation, though. Rather, it allows them to intervene in a pending custody case between parents to ask for visitation rights. [33] So, if Molly and Joe separated and one or both of them asked a court to decide which parent should have custody of the children, Molly’s parents could intervene.
G.S. 50-13.5(j) allows grandparents to ask for custody or visitation rights at any time after a court has made a custody determination. So, if Molly’s parents decided not to intervene in the initial custody case but then found that they needed court assistance to visit with the grandchildren, they could petition the court to reopen the case. If the court did so, it could consider entering an additional order for grandparent custody or visitation. However, because the order settling custody between Molly and Joe would be considered final, the court could not reopen the case unless Molly’s parents could show that there had been a substantial change of circumstances affecting the welfare of the children since the original order was entered. [34]
Finally, G.S. 50-13.2A allows grandparents to petition for access after a child has been adopted by a stepparent or another relative if the grandparents can show that “a substantial relationship exists between the grandparent and child.” Generally, adoption of a child severs all legal ties between the child and the biological family. All three grandparent statutes specify that “[u]nder no circumstances shall a biological grandparent of a child adopted by adoptive parents, neither of whom is related to the child and where parental rights of both biological parents have been terminated, be entitled to visitation rights.” However, G.S. 50-13.2A creates an exception when only one parent has given up parental rights, that parent’s role has been legally assumed by a stepparent or another relative, and the grandparents have enjoyed a substantial relationship with the child in the past. [35] Unlike the situation in which both parents have given up parental rights and all biological family ties have been severed, this situation involves only one parent giving up his or her rights. Thus biological ties remain, and the state retains an interest in protecting a child’s extended familial relationships. [36]
G.S. 50-13.2A would allow Molly’s or Joe’s parents to petition for court-ordered visitation if either Molly or Joe remarried and one of the new spouses adopted the children. This would be true even if there had never been a custody action between Molly and Joe. [37] Again, the court could order visitation if the judge determined that it would be in the children’s best interest.
Interestingly the North Carolina statutes do not specifically provide for visitation when one parent dies, and North Carolina appellate courts have not directly addressed the issue. [38] So, for example, it is uncertain whether Molly’s parents would have a right to visitation if Molly died and Joe had sole custody of the children. [39]
As noted earlier, the three North Carolina statutes give grandparents the legal right to petition a court for visitation rights; [40] they do not give grandparents a legal right to court-ordered visitation.The focus is not on a grandparent’s entitlement to contact with grandchildren but on protection of a child’s interest in the perceived benefits of extended familial relationships. Visitation may not be granted pursuant to these statutes unless grandparents show a judge that (1) they are fit and proper persons to visit with the child [41] and (2) the visitation will serve the child’s best interest.
Trial judges have much discretion in determining whether grandparent visitation is in a child’s best interest. The law requires that they weigh all the facts to decide whether visitation will promote the child’s physical, emotional, and psychological well-being. [42] A judge may consider the wishes of the grandchild if he or she is of suitable age; however, the child’s wishes are not controlling. [43] Except in cases involving adoption by a stepparent or another relative, [44] a grandparent in North Carolina need not prove a substantial existing relationship with a grandchild before the court may order visitation. However, such a relationship will be a significant factor in a determination of the child’s best interest.
North Carolina appellate courts have not yet addressed the question of how to afford grandparents the visitation rights allowed by these three statutes while recognizing and protecting the constitutional rights of parents discussed earlier. However, the protected status of parents seems to require that, in making a best-interest determination in a grandparent visitation case, judges presume that parents act in their children’s best interest. [45] Applying such a presumption, judges would probably give considerable weight to the parents’ wishes. [46]
In 1995 the North Carolina General Assembly authorized the Legislative Research Commission to study whether grandparents should be allowed to petition for visitation against parents living as an intact family unit. [47] In its report to the General Assembly in January 1997, the Legislative Study Commission on Grandparent Visitation recommended expansion of the rights of grandparents. Finding that “relationships between grandparents and grandchildren are valuable and should be encouraged,” the commission proposed legislation that would allow grandparents to petition at any time for visitation by alleging only that the visitation would be in the grandchild’s best interest. [48]
The commission’s report acknowledges that appellate courts in other states have found such legislation to be an unconstitutional infringement on parents’ rights. For that reason the proposed legislation contains added protections for parents living as an intact family. It would allow a court to order visitation over the objection of parents who are married and living together only when
(1) either there is a preexisting relationship between the grandparent and grandchild that has engendered a bond, or . . . the grandparent has made a substantial effort to establish a bond, such that visitation is in the best interest of the grandchild, and (2) the amount and circumstances of the visitation awarded will not substantially interfere with the right of the parents to exercise parental authority. [49]
Further, when the parents are married, live together, and agree that the grandparents should not visit the child, there is a presumption that grandparent visitation is not in the child’s best interest. Grandparents in such cases would have an increased burden of proving with “clear and convincing evidence” that visitation is necessary to protect the child’s best interest. [50]
Like the present law, the proposed statute focuses on protecting a child’s interest rather than on establishing a grandparent’s right to visit the child. Nonetheless, the proposed statute would likely be challenged because of its effect on all parents’ authority to decide with whom their children spend time. It directly contradicts the currently recognized constitutional rights of parents because it does not require that parents first be shown to be unfit or to have engaged in misconduct. [51] Instead, it substitutes the discretion of a judge for that of the child’s parents regarding the propriety of contact with grandparents.
Courts in other states have reached differing conclusions about whether the substitution of a judge’s discretion for that of the parents under these circumstances violates the Constitution of the United States. Most have agreed that (1) parents have a constitutionally protected fundamental right to rear children free from unwarranted governmental interference; (2) in general, relationships between grandparents and grandchildren are beneficial to children and should be encouraged; and (3) to protect a child’s health or safety, a state may enact laws that interfere with parental discretion. However, courts have significantly disagreed over whether a state may interfere with parental rights to promote a relationship that may benefit a child but is not necessary to protect the child’s health or safety. [52]
Generally speaking, among the courts that have found expanded statutes unconstitutional, the reasoning is that, to pass a law limiting parental discretion, a state must have a compelling interest to protect. [53] Whereas laws such as those prohibiting parents from physically or emotionally harming a child, requiring children to wear restraints while riding in a car, and requiring children to attend school clearly promote the compelling state interest of protecting the health and safety of children, no such interest is served when a law merely benefits children. According to these courts, allowing a judge to order grandparent visitation over the objection of a child’s parents in an intact family is analogous to allowing a court to take a child from poor parents and place him or her with more affluent caregivers. In either situation a judge could reasonably determine that the child would benefit from the court’s order. order. [54]
The courts that have found the statutes constitutional reason that court-ordered visitation is not a significant intrusion into the fundamental rights of parents, so states are not required to demonstrate a compelling interest. [55] Concluding that visitation privileges intrude far less on parental autonomy than, for example, orders involving custody or termination of parental rights, these courts have held that states can justify imposing visitation over the objection of parents by simply showing a “legitimate state purpose” accomplished by the grandparent visitation statutes. Promoting the generally beneficial relationship between grandparents and grandchildren is a legitimate state goal as long as the statute requires a judge to determine that visitation in an individual case will serve the child’s best interest.
Generally the Supreme Court of the United States resolves conflicts between states on issues of constitutional law. However, it has traditionally deferred to state courts on issues of child custody and visitation. [56] Therefore, if the North Carolina General Assembly enacts legislation allowing grandparent visitation in intact families, the North Carolina Supreme Court will likely make the conclusive determination of the law’s constitutionality.
Grandparents in North Carolina currently have very limited rights with regard to custody of and visitation with grandchildren. The recent recommendation of the Legislative Study Commission on Grandparent Visitation reflects public interest in expanding these rights. In light of the North Carolina Supreme Court’s opinions reaffirming parents’ rights under both the state and the federal constitution, an expanded grandparent visitation statute almost certainly would face a constitutional challenge.
1. Throughout this article the term “parent” includes both a biological and an adoptive parent.
2. Thomas v. Pickard, 18 N.C. App. 1, 5, 195 S.E.2d 339, 342 (1973).
3. Catherine Bostock, “Does the Expansion of Grandparent Visitation Rights Promote the Best Interests of the Child? A Survey of Grandparent Visitation Laws in the Fifty States,” Columbia Journal of Law and Social Problems27 (1994): 326, quoting Henry J. Foster and Doris J. Freed, “Grandparent Visitation: Vagaries and Vicissitudes,” Journal of Divorce5 (1982): 81–82. The authors note that most jurisdictions recognized equitable exceptions to this rule and would, for example, order visitation when the child had previously resided with the grandparent for a long period or when the parent had been shown to be unfit.
4. See Bostock, “Survey,” 319 n. 3, for a listing of all fifty statutes.
5. S. Con. Res. 40, 98th Cong., 1st Sess., 129 Congressional Record13,487 (1983) (enacted) [“A concurrent resolution expressing the sense of Congress that a uniform State act should be developed and adopted which provides grandparents with adequate rights to petition State courts for privileges to visit their grandchildren following the dissolution (because of divorce, separation or death) of the marriage of such grandchildren’s parents, and for other purposes”]. There have been other occasions on which Congress has expressed support for a uniform act addressing visitation by grandparents. SeeAnne Marie Jackson, “The Coming of Age of Grandparent Visitation Rights,” American University Law Review43 (1994): 566, for a discussion of congressional action on this issue and a strong recommendation that a uniform act be enacted, 566 nn. 71–72.
6. See, e.g.,Jackson, “The Coming of Age”; Note, “Constitutional Questions Regarding Grandparent Visitation and Due Process Standards,” Missouri Law Review60 (1995): 195–219.
7. See, e.g.,Bostock, “Survey”; Edward M. Burns, “Grandparent Visitation Rights: Is It Time for the Pendulum to Fall?” Family Law Quarterly25 (Spring 1991): 59–81.
8. At least seventeen state statutes clearly allow visitation when there has been no disruption in the nuclear family. Those statutes are identified in note 11. Statutes in the rest of the states require some type of disruption before grandparents may ask a court to force visitation on objecting parents. SeeBostock, “Survey,” 333 n. 75 (stating that disruption may be the death of a parent, the separation or the divorce of the parents, a custody or visitation suit regarding the child, a child born out of wedlock, or the adoption, the dependency, or the delinquency of the child).
9. Most states also would allow Joe’s parents to visit if Molly died. However, according to Bostock, “Survey,” 342, at least fourteen states allow grandparents to visit only when their own child has died. Those states are California, Cal. Fam. Code § 3102 (West 1994); Colorado, Colo. Rev. Stat. Ann. § 19-1-117(1)(c) (West 1990 & Supp. 1993); Georgia, Ga. Code Ann. § 19-7-3(a) (Supp. 1993); Iowa, Iowa Code Ann. § 598.35(3) (West 1981 & Supp. 1994); Louisiana, La. Rev. Stat. Ann. § 9:344 (West 1993); Michigan, Mich. Comp. Laws Ann. § 722.27(b) (West 1993); Minnesota, Minn. Stat. Ann. § 257.022 (West 1992 & Supp. 1994); Mississippi, Miss. Code Ann. § 93-16-3 (Supp. 1993); Ohio, Ohio Rev. Code Ann. § 3109.11 (Baldwin 1992); Pennsylvania, 23 Pa. Cons. Stat. Ann. §§ 5311-5314 (1991 & Supp. 1993); Rhode Island, R.I. Gen. Laws § 15-5-24.1 (1988); Texas, Tex. Fam. Code Ann. § 14.03(e)(1), (5) (West 1986 & Supp. 1994); West Virginia, W. Va. Code § 48-2B-1 through -2B-9 (1992 & Supp. 1993); and Wyoming, Wyo. Stat. § 20-2-113(c) (1987 & Supp. 1993).
Interestingly, North Carolina law is not clear about the right of a grandparent to visitation when a parent has died. See the text accompanying notes 38–39.
10. See Bostock, “Survey,” 341–48.
11. Conn. Gen. Stat. Ann. § 46B-59 (West 1986); Fla. Stat. Ann. § 752.01(1)(e) (West 1986 & Supp. 1994) (statute held unconstitutional; see note 53); Idaho Code § 32-1008 (1983); Kan. Stat. Ann. § 38-129 (1986); Ky. Rev. Stat. Ann. § 405.021 (Bobbs-Merrill 1984); Md. Code Ann., Fam. Law § 9-102 (1984 & Supp. 1993); Miss. Code Ann. § 93-16-3(2) (Supp. 1993); Mo. Ann. Stat. § 452.402(1)(3) (Vernon 1986 & Supp. 1993); Mont. Code Ann. § 40-9-102 (1993); N.J. Stat. Ann. § 9:2-7.1 (West 1993); N.Y. Dom. Rel. Law § 72 (McKinney 1986 & Supp. 1994); N.D. Cent. Code § 14-09-05.1 (1991 & Supp. 1993); Okla. Stat. Ann. tit. 10, § 5 (A)(1) (West 1987 & Supp. 1994); Or. Rev. Stat. § 109.121(1)(a) (1993); R.I. Gen. Laws § 15-5-24.3 (1988 & Supp. 1993); Tenn. Code Ann. § 36-6-301 (1991) (statute held unconstitutional; see note 53); Wis. Stat. Ann. § 767.245 (West 1993).
12. See the text accompanying notes 53–54.
13. See the text accompanying note 55.
14. G.S. 50-13.1(a) was amended in 1989 to specify that “[u]nless a contrary intent is clear, the word custody shall be deemed to include custody or visitation or both.” 1989 N.C. Sess. Laws ch. 547, § 2.
15. See In re Pearl, 305 N.C. 640, 290 S.E.2d 664 (1982); Tucker v. Tucker, 288 N.C. 81, 216 S.E.2d 1 (1975). Before 1994 the North Carolina Court of Appeals issued several opinions indicating that these statutes should be read literally to allow any person to bring an action for custody of or visitation with any child by simply making the allegation that the custody or the visitation would be in the child’s best interest. See, e.g., In re Rooker, 43 N.C. App. 397, 258 S.E.2d 828 (1979); Ray v. Ray, 103 N.C. App. 790, 407 S.E.2d 592 (1991). These cases were, in effect although not explicitly, overruled by Petersen v. Rogers, 337 N.C. 397, 445 S.E.2d 901 (1994), and Price v. Howard, 346 N.C. 68, 484 S.E.2d 528 (1997), discussed in the text accompanying notes 18–26.
16. Spitzer v. Lewark, 259 N.C. 50, 53–54, 129 S.E.2d 620, 623 (1963).
17. Spitzer,259 N.C. at 54, 129 S.E.2d at 623. See alsoJames v. Pretlow, 242 N.C. 102, 105, 86 S.E.2d 759, 761 (1955) (holding that reason to interfere with parental rights must be “real, cogent, weighty, strong, powerful, serious or grave”).
18. Petersen,337 N.C. at 406, 445 S.E.2d at 905–06 (1994); McIntyre v. McIntyre, 341 N.C. 629, 461 S.E.2d 745 (1995); Price,346 N.C. at 68, 484 S.E.2d at 528. Pricecontains a particularly extensive discussion of the state and federal constitutional rights of parents.
19. Price,346 N.C. at 79, 484 S.E.2d at 534.
20. Price,346 N.C. at 68, 484 S.E.2d at 528. See also Petersen, 341 N.C. at 397, 445 S.E.2d at 901.
21. Price,346 N.C. at 79, 484 S.E.2d at 534; Petersen, 341 N.C. at 406, 461 S.E.2d at 905.
22. Price,346 N.C. at 79, 484 S.E.2d at 534. The court held that a judge may not make a determination that third-party custody or visitation is or is not in a child’s best interest until the parents waive their constitutionally protected status by being unfit or being shown to have acted in a manner inconsistent with their protected status.
23. Price,346 N.C. at 79, 484 S.E.2d at 534–35.
24. The court in Priceacknowledged that there may be circumstances in which a parent has compelling reasons to leave a child in the care of another person. As an example, the court pointed to the situation in which a parent becomes ill and another person cares for the child during the parent’s illness. Under such circumstances, according to the court, a parent would not lose his or her protected status. Price,346 N.C. at 79–83, 484 S.E.2d at 535–37.
25. See Sharp v. Sharp, 124 N.C. App. 357, 477 S.E.2d 258 (1996) (holding that grandparents have right to seek custody when they allege that parents are unfit).
26. Price,346 N.C. at 79, 484 S.E.2d at 534. See the text accompanying notes 37–41 for a discussion of the best-interest determination made by judges.
27. Sharp,124 N.C. App. at 357, 477 S.E.2d at 258; McIntyre,341 N.C. at 629, 461 S.E.2d at 745.
28. Sharp,124 N.C. at 357, 477 S.E.2d at 258; Fisher v. Fisher, 124 N.C. App. 442, 477 S.E.2d 251 (1996).
29. McIntyre,341 N.C. at 629, 461 S.E.2d at 745. The court in McIntyredid not address the constitutionality of the North Carolina grandparent statutes.
30. 1981 N.C. Sess. Laws ch. 735.
31. 1985 N.C. Sess. Laws ch. 575.
32. See also McIntyre,341 N.C. at 629, 461 S.E.2d at 745 (holding that grandparent visitation rights are limited to those provided by these three statutes).
33. Moore v. Moore, 89 N.C. App. 351, 365 S.E.2d 662 (1988); Thomas v. Pickard, 18 N.C. App. 1, 195 S.E.2d 339 (1973).
34. G.S. 50-13.7. The “substantial change of circumstances” test may be met by showing that the grandparents were able to visit the children before the earlier custody order but have since been denied access. See Hedrick v. Hedrick, 90 N.C. App. 151, 368 S.E.2d 14 (1988).
35. G.S. 50-13.2A specifies that, in cases of adoption by a stepparent or another relative, grandparents may institute visitation actions. The other two grandparent statutes also apply to grandparents of children adopted by stepparents or other relatives. See G.S. 50-13.2(b1), -13.5(j).
36. Hedrick,90 N.C. App. at 158, 368 S.E.2d at 19.
37. Molly’s parents could actually intervene in the adoption proceeding to request a visitation order. Hedrick,90 N.C. App. at 158, 368 S.E.2d at 19.
38. But see McIntyre,341 N.C. at 629, 461 S.E.2d at 745 [stating that court has jurisdiction to determine custody when “the parent is unfit, has abandoned or neglected the child, or has died”(emphasis added)].
39. In McIntyre,341 N.C. at 629, 461 S.E.2d at 745, the court held that grandparent visitation rights were limited to those specifically set out in the grandparent visitation statutes. Because the statutes do not mention death of a parent, it is arguable that the doctrine of parental preference bars a grandparent from seeking visitation when one parent has died and the child resides with the remaining parent. See Fisher,124 N.C. App. at 442, 477 S.E.2d at 251; Sharp,124 N.C. App. at 357, 477 S.E.2d at 258 (both holding that parental preference doctrine protects rights of single parents as well as married parents).
40. In some North Carolina counties, grandparents filing a petition for visitation will be required to participate in mediation. G.S. 50-13.1(b) requires that, in cases filed in districts with a mediation program, parties to a dispute involving child custody or visitation meet with a qualified, professional mediator in an attempt to resolve the case without resorting to an adversarial court proceeding. As of January 1997, seventeen of the thirty-nine district court districts in North Carolina had a child custody mediation program. The North Carolina Administrative Office of the Courts expects that all districts will have a mediation program by the year 2000.
41. Hedrick,90 N.C. App. at 154, 368 S.E.2d at 16, citing Montgomery v. Montgomery, 32 N.C. App. 154, 231 S.E.2d 26 (1977).
42. See Phelps v. Phelps, 337 N.C. 344, 354–55, 466 S.E.2d 17, 23, reh’g denied,337 N.C. 807, 449 S.E.2d 750 (1994).
43. Reynolds v. Reynolds, 109 N.C. App. 110, 426 S.E.2d 102 (1993); Hinkle v. Hinkle, 266 N.C. 189, 146 S.E.2d 73 (1966).
44. See G.S. 50-13.2A and the text accompanying note 35.
45. In re Hughes, 254 N.C. 434, 436, 119 S.E.2d 189, 191 (1961), cited with approval in Price,346 N.C. at 68, 484 S.E.2d at 528, and Petersen,337 N.C. at 397, 445 S.E.2d at 901; In re Jones, 14 N.C. App. 334, 337–39, 188 S.E.2d 580, 582–83 (1972).
46. In Petersen,337 N.C. at 397, 445 S.E.2d at 901, the supreme court held that, in the absence of a finding that parents are unfit or have neglected their children’s welfare, parents have an absolute constitutional right to determine with whom their children associate. The court did not discuss the effect of the grandparent visitation statutes on this parental right. However, Petersenand other recent decisions by the supreme court— see, e.g., Price,346 N.C. at 68, 484 S.E.2d at 528, and McIntyre,341 N.C. at 629, 461 S.E.2d at 745—firmly establish that parents have protected status under North Carolina law. This status must be recognized in any best-interest determination made by a trial judge.
47. The study of grandparents’ visitation rights by the Legislative Research Commission was authorized by 1995 N.C. Sess. Laws ch. 542, pt. II. The report of the commission (hereinafter Legislative Research Commission Report) was presented to the members of the 1997 General Assembly on January 3, 1997.
48. The legislation proposed by the study commission was introduced during the 1997 session of the North Carolina General Assembly as Senate Bill 44 and House Bill 82. However, neither the Senate nor the House acted on the legislation. The legislation must be reintroduced before it can be considered again.
49. Senate Bill 44 and House Bill 82, both contained in Legislative Research Commission Report.
50. Senate Bill 44 and House Bill 82.
51. See the text accompanying notes 14–28.
52. For an extended analysis of the constitutional issues raised by grandparent visitation statutes, seeJackson, “The Coming of Age”; Samuel V. Schoonmaker III, William Narwold, Roberta Hatch, and Karen Goldwaite, “Constitutional Issues Raised by Third-Party Access to Children,” Family Law Quarterly25 (Spring 1991): 95–115; Note, “Constitutional Questions.”
53. See, e.g.,Beagle v. Beagle, 678 So. 2d 1271 (Fla. 1996); Brooks v. Parkerson, 454 S.E.2d 769 (Ga. 1995); Hawk v. Hawk, 855 S.W.2d 573 (Tenn. 1993).
54. See King v. King, 828 S.W.2d 630, 633–35, cert. denied,506 U.S. 941, 113 S. Ct. 378, 121 L. Ed. 2d 289 (1992), Lambert, J., dissenting.
55. See, e.g.,Herndon v. Tuhey, 857 S.W.2d 201 (Mo. 1993); King,828 S.W.2d at 630; Spradling v. Harris, 778 P.2d 365 (Kan. Ct. App. 1989); Francis E. v. Peter E., 479 N.Y.S.2d 319 (1984).
56. Jackson, “The Coming of Age,” 565.
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