Third-Party Visitation: What Every Parent Needs to Know

Grandparents have standing to seek visitation with a minor child under North Carolina Law, under the circumstances discussed below. The chief limitation is the priority given to the right of the natural or adoptive parents to determine who their child will associate with.

A North Carolina Grandparent has no standing to seek visitation when children are living in an intact family – where there are no issues of separation or divorce. In resolving visitation disputes between a parent and a grandparent, courts must balance two legal doctrines:

  • The “parental right” doctrine, and
  • The “best interest of the child” doctrine.

Troxel v. Granville

The US Supreme Court weighed in on the issue of grandparents’ visitation rights in the 2000 case of Troxel v. Granville.

The Washington law provided that “[t]he court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances.”

Tommie Granville and Brad Toxel never married but had two daughters, Isabelle and Natalie.  After their relationship ended in 1991, Brad lived with his parents, Jenifer and Gary Troxel, and regularly brought his daughters to visit with their grandparents over weekends. In May of 1993 Brad committed suicide.

At first, Jenifer and Gary continued to see their grandchildren regularly.  But in October of 1993 Tommie told them that she wished to limit their visitation to one short visit per month.

In December of 1993 Jenifer and Gary petitioned a Washington Superior Court for the right to visit their grandchildren two weekends per month and two weeks each summer. Tommie Granville opposed the petition, asking the court to limit visitation to one day of visitation per month with no overnight stay.

In 1995, the trial court ordered visitation one weekend per month, one week during the summer, and four hours on both of the grandparents’ birthdays. The case eventually reached the Washington Supreme Court, which held that the law unconstitutionally interfered with the fundamental right of parents to rear their children.

The Washington Supreme Court found the following problems with the non-parental visitation statute:

  • The Constitution permits a State to interfere with the right of parents to rear their children only to prevent harm or potential harm to a child.
  • The Washington visitation statute was too broad.
  • “It is not within the province of the state to make significant decisions concerning the custody of children merely because it could make a `better’ decision.”
  • “Parents have a right to limit visitation of their children with third persons,” and between parents and judges, “the parents should be the ones to choose whether to expose their children to certain people or ideas.”

The US Supreme Court agreed with the Washington Supreme Court.

Justice O’Connor’s decision noted that: Because grandparents and other relatives undertake duties of a parental nature in many households, States have sought to ensure the welfare of the children therein by protecting the relationships those children form with such third parties. The States’ nonparental visitation statutes are further supported by a recognition, which varies from State to State, that children should have the opportunity to benefit from relationships with statutorily specified persons—for example, their grandparents.

The extension of statutory rights in this area to persons other than a child’s parents, however, comes with an obvious cost. For example, the State’s recognition of an independent third-party interest in a child can place a substantial burden on the traditional parent-child relationship. The Supreme Court held that the Due Process Clause of the Fourteenth Amendment to the US Constitution protects the rights of parents to “establish a home and bring up children” and “to direct the upbringing and education of children under their control.”

The Court concluded that the Washington statute was “breathtakingly broad” and that the state court had put the burden on the mother to disprove that visitation with the grandparents would be in the best interests of her children, contravening the assumption that a fit parent will act in the best interests of his or her children. Thus, the US Supreme Court found that the Washington court had failed to protect the mother’s Constitutional rights to make decisions regarding her daughters.

Balancing Interests

Courts must weigh various interests and rights when ruling on third-party visitation petitions:

  • The child’s interest in maintaining a connection with a “psychological parent” who may be more important in the child’s life than a biological parent;
  • The rights (if any) of the third parties;  and
  • The rights of the parent(s).

In order for a non-parent to seek visitation, that non-parent must have standing:  the legal right to seek a remedy from a court in a particular situation.


Under North Carolina law, grandparents have standing to seek visitation under three statutory provisions. The law defines a grandparent as the biological grandparent of the child, except when the child has been adopted. If a child has been adopted, then the child “joins the bloodline” of the adoptive family, and the adoptive grandparents have standing.

The law does not, however, grant standing to step-grandparents when their familial relationship with the child has been terminated by the death or divorce of the step-parent.

In the case of adoption, if a step-parent or blood relative has adopted the child, and the biological grandparents have a substantial relationship with the child, then the biological grandparents retain standing. However, if the adoptive parents have no blood relation to the child, and the parental rights of the biological parents have been terminated by the adoption, the biological grandparents will lose their standing to seek visitation.

The following 1998 case shows a court’s analysis in ruling on a request for visitation by a biological grandparent of a child who had been adopted by a family member.

Hill v. Newman

Joyce Carson Hill was the grandmother of her daughter Crystal’s two children.  Crystal’s sister (Joyce’s daughter) Peggy Helms and her husband adopted Crystal’s two children in 1995. In 1996, Joyce sought visitation with her grandchildren, under the North Carolina statute which provides that “a biological grandparent is entitled to visitation rights with the adopted child….” Peggy and her husband opposed this motion.

The trial court entered an order in 1997 in which it concluded “[t]hat the parties do not get along and will probably never get along and therefore it is not in the best interest of the minor children for [Joyce] to have any visitation with the minor children.”

Joyce appealed. The court of appeals noted that, under North Carolina law, Any parent, relative, or other person, agency, organization or institution claiming the right to custody of a minor child may institute an action or proceeding for the custody of such child, as hereinafter provided.

Unless a contrary intent is clear, the word “custody” shall be deemed to include custody or visitation or both. The court of appeals also noted that the state Supreme Court had concluded that this statute was available for grandparents who sought visitation rights when:

  • the parents are unfit, have abandoned or neglected the child, or have died; or,
  • by reason of separation or divorce, custody is at issue between the parents.

Here, neither of these situations was applicable. The court of appeals then turned to another provision of North Carolina law, in which: An order for custody of a minor child may provide visitation rights for any grandparent of the child as the court, in its discretion, deems appropriate.

As used in this subsection, “grandparent” includes a biological grandparent of a child adopted by a stepparent or a relative of the child where a substantial relationship exists between the grandparent and the child. The court of appeals found that this also didn’t apply to Joyce, since there was no custody dispute.

The court of appeals then looked at a third statute, under which: In any action in which the custody of a minor child has been determined, upon a motion in the cause and a showing of changed circumstances pursuant to [N.C. Gen. Stat. §] 50-13.7, the grandparents of the child are entitled to such custody or visitation rights as the court, in its discretion, deems appropriate.

As used in this subsection, “grandparent” includes a biological grandparent of a child adopted by a stepparent or a relative of the child where a substantial relationship exists between the grandparent and the child. The court of appeals noted that this law was intended to protect the rights of grandparents.

However, again, since the case at hand did not involve a custody dispute this law could not be used to establish Joyce’s standing.

Finally, the court of appeals looked at a statute which provided: A biological grandparent may institute an action or proceeding for visitation rights with a child adopted by a stepparent or a relative of the child where a substantial relationship exists between the grandparent and the child. … A court may award visitation rights if it determines that visitation is in the best interest of the child. . . .

The court noted that this gives a grandparent standing to seek visitation if “a substantial relationship exists between the grandparent and the child.” In the present case, Joyce lived near her grandchildren and had helped raise them since birth.

Also, before the children were adopted by their aunt, they had lived with Joyce for about eight months. Thus, the court found that a “substantial relationship” existed and thus that Joyce had standing to seek visitation.

The next issue was whether the trial court erred in denying Joyce’s request for visitation. North Carolina courts have the authority to grant visitation to grandparents when the court “determines that visitation is in the best interest of the child[ren].” The trial court had determined, after extensive findings of fact, that it was not in the best interest of the children to have visitation with Joyce. For example, the trial court had found:

  • Joyce never accepted that Peggy and her husband were the children’s adoptive parents.  She still felt that the children were Crystal’s children.
  • The children were involved in community and church activities and their time for visitation with their grandmother was limited.
  • Peggy’s visits to Joyce with the children were very difficult:
    • On one occasion, Joyce interfered with Peggy’s parental authority.
    • On other visit, Joyce spent most of the visit crying and upset about her inability to see the children more often.
    • On a third occasion, Joyce threatened to run off with the children.
    • On a fourth occasion, Joyce arranged for the children to meet with Crystal without Peggy’s permission.  When Peggy objected, Crystal assaulted Peggy and threatened to kill her – all in front of the children.
  • The children were upset by the events that occurred during visitation with Joyce.
  • The adults in the family did not get along and probably never would.

The court of appeal noted that: a trial court’s decision should not be reversed on a whim simply because the appellate court believes, based upon its reading of the cold record, that the trial court erred; rather, a trial court should only be reversed if the dissatisfied party demonstrates that the trial court committed a manifest abuse of discretion.

The court of appeals then concluded that the trial court did not abuse its discretion in denying Joyce’s request for visitation.

Substantial Relationship

The North Carolina statute does not define what a “substantial relationship” means with respect to grandparents.  As in the Hill case above, having the children live with the grandparent for eight months is enough to find a “substantial relationship.”

Other cases have found a substantial relationship when the children regularly visit in the grandparents’ home, including overnight, and when grandparents and grandchildren engage in social activities. If a parent has terminated visitation between a grandparent and grandchild, lack of contact during the one-year period between termination and the hearing on the grandparent’s motion for visitation may not be used as a basis to find there was not a “substantial relationship” before the parent unilaterally terminated visitation.

Limitations on Grandparent Standing

As discussed above in the Hill case, several statutes confer standing on grandparents in specific situations. The statute that confers standing not only on grandparents but also on “[a]ny parent, relative, or other person, agency, organization or institution claiming the right to custody of a minor child” is limited to situations where the grandparent proves that the parent is unfit, has died, or has engaged in conduct inconsistent with the parent’s parental status.

As noted above, grandparents have no standing to seek visitation against parents when children are living in an intact family where there are no allegations of parental unfitness or misconduct. If there is an ongoing custody dispute, a court order for custody can provide for visitation rights by the grandparents.  Thus, this statue explicitly recognizes the rights of the grandparents.

If the court has already made a custody order, then grandparents may seek visitation (if they do not already have it) upon a showing of a substantial change in circumstances.  If the parents had permitted visitation before, and then stopped it, that in itself might be considered a “substantial change in circumstances.”

However, a court’s jurisdiction over the custody of children only lasts until one parent dies or the youngest child reaches legal adulthood.  After that point, a grandparent may no longer use a prior custody order as the basis for standing to seek visitation.  One exception to this rule is when a parent dies after the court has already recognized custody rights for a grandparent.

Standing of Other Third Parties to Seek Visitation

North Carolina law does not recognize visitation rights for any specific class of third parties other than grandparents. As noted in our article on third party custody, third parties other than grandparents may seek custody of children under certain circumstances, such as where a parent has died or has engaged in misconduct, or where the third party has gained quasi-parental status.

Paradoxically, domestic partners, step-parents, and others who formerly had a close relationship with a child may thus find it more difficult to obtain the right to visitation with a child than to obtain custody of the child. In the case of visitation, the North Carolina Supreme Court limited third party standing to seek visitation to persons related to the child, as seen in the following case from 1994.

Petersen v. Rogers

Upon her son’s birth, Pamela Rogers placed him for adoption with the state Department of Social Services. William and Patricia Petersen took custody of the baby within days of his birth and petitioned for adoption, which petition was granted.

However, after the child had lived with the Petersons for three years, the court voided the adoption and ordered the child returned to his biological parents. The Petersens sought either custody of, or visitation with, the child.

The trial court denied the request and the Petersens appealed. The North Carolina Supreme Court concluded that the parents’ “constitutionally-protected paramount right to custody, care, and control of their child, including control over his associations, outweighed [the Petersen’s] interests.”

The North Carolina Supreme Court noted that it didn’t matter which parents were better parents: Even if it were shown, for example, that a particular couple desirous of adopting a child would best provide for the child’s welfare, the child would nonetheless not be removed from the custody of its parents so long as they were providing for the child adequately.

Similarly, “the best interests of the child” is not the legal standard that governs parents’ or guardians’ exercise of their custody: so long as certain minimum requirements of child care are met, the interests of the child may be subordinated to the interests of other children, or indeed even to the interests of the parents or guardians themselves. The North Carolina Supreme Court noted the following findings of fact by the trial court:

  • Pamela made consistent and continuous attempts to set aside her consent to give up her child for adoption.
  • William Rowe (the child’s father) sought to legitimate his son.
  • Pamela and William were fit parents and there was no finding they had neglected their son’s welfare.

Thus, the Petersens had no right to seek visitation under the relevant statute, which reads: Any parent, relative, or other person, agency, organization or institution claiming the right to custody of a minor child may institute an action or proceeding for the custody of such child, as hereinafter provided. Unless a contrary intent is clear, the word “custody” shall be deemed to include custody or visitation or both.

The Supreme Court agreed with the reasoning of the trial court that, despite the “other person” language, the legislature did not intend “to confer upon strangers the right to bring custody or visitation actions against the parents of children unrelated to [those strangers].”

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