Page 11 - NC Triangle Vol 6 No 4

TIFFANY A. LESNIK | Family Law
Third-Party Custody and Grandparent
Visitation
As unfortunate as it may be, I will sometimes re- ceive 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?” e answer is generally they are too late. erefore, it is best for grandparents to le a motion for intervention and for grandparent visitation, which they are entitled to under North Carolina law as early as possible.
GRANDPARENT INTERVENTION
While the terms visitation and custody may be syn- onymous in North Carolina’s courts, those two terms can have very di erent legislative meanings. A special statute has been carved out for grandparent visitation that is dif- ferent than custody and allows for grandparents to inter- vene for limited visitation rights during ongoing custody disputes.
e grandparents must le to intervene while the litigation between the natural or adoptive parents is ongoing and inter- vention 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 fam- ily that is still together or not separated; a family that has rec- onciled following a separation or following litigation; a fam- ily 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 ling 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 le to intervene as soon as one of the parents has initiated a lawsuit for custody. Grandparents may also le to intervene prior to a hearing on permanent cus- tody even if there is a temporary custody order, because a temporary order is interlocutory. Finally, grandparents may le to intervene if one of the parties’ les a motion to modify custody or a motion for emergency custody – anything that restarts custody litigation.
Once grandparents le 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 grand- parents have not led a motion to intervene prior to litigation resolution or death of one of the parties, then they are out of luck. e best advice that an attorney can give to a grand- parent 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.
THIRD-PARTY CUSTODY
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 un t, have neglected their chil- dren 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. e “Intact Family Rule” does not apply in cases of custody where neglect, un tness or acts inconsistent are alleged.
However, grandparents or any other third party suing for custody would have to allege un tness, neglect or acts in- consistent as to both living parents in order to have stand- ing to sue. erefore, when suing for actual custody versus grandparent visitation one must prove and allege un tness, 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. erefore, 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 par- ties would try to cut them out later.
TIFFANY A. LESNIK GRADUATED FROM NC STATE UNIVERSITY WITH A BACHELOR OF ARTS IN PSYCHOLOGY. SHE EARNED A MASTER’S EDUCATION IN CLINICAL PSYCHOL- OGY FROM NCCU. LESNICK EARNED HER JURIS DOCTOR CAMPBELL UNIVERSITY’S SCHOOL OF LAW. SHE OPERATES LESNIK FAMILY LAW P.C WITH HER HUSBAND WHERE THEY FOCUS ON AFFORDABLE LEGAL SERVICES FOR LOW INCOME FAMILIES, MEDIA- TION FOR PRO SE AND DOMESTIC VIOLENCE CASES, AND COLLABORATIVE LAW. LE- SNIK IS A CHILD’S ADVOCATE, PARENTING COORDINATOR, IS TRAINED IN COLLAB- ORATIVE LAW AND TRULY ENJOYS THIRD PARTY CUSTODY MATTERS. SHE IS ALWAYS HAPPY TO ANSWER QUESTIONS AND CAN BE REACHED AT (919) 906-8988, TIFFANY@ LESNIK-LAW.COM OR WWW.LESNIK-LAW.COM.
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