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.