In Divorce, the Grandparents Have Rights

By Tonya Graser Smith

I want to talk about grandparents. We honored them on Sunday with Grandparents Day – and with good reason. Grandparents are special.

Growing up I’ll never forget the 1:1 time I had with my grandparents during summertime visits to New York and Connecticut. I remember one of my grandmas teaching me to sew. Living in Tennessee, I didn’t get to see my grandparents much, so this time with them was extra special.

Now, as a parent, I urge other parents to nourish that grandchild-grandparent bond. And as a family law attorney, I encourage parents not to forget their children’s grandparents when they’re going through divorce. And I urge grandparents to understand their rights in divorce, too.

That’s right. Grandparents have rights – at least in North Carolina, where I practice family law. Here’s what parents and grandparents need to know about the role of grandparents and their rights.

Grandparents can ask the court for visitation rights.

If there is a pending custody case, grandparents can ask the court for visitation rights. The key here is it must be a pending case. It’s important for grandparents to preserve their rights to see their grandchildren, especially if relationships among the adults turn adversarial or distant.

Consider what would happen if one parent dies. The living parent becomes the sole guardian of the children and might not be good about making sure the children see his or her former in-laws. However, if the grandparents are already part of the custody equation, they can again ask the court to protect their rights to visitation.

Check out our North Carolina grandparent visitation law here.

Grandparents can ask for these rights after divorce has been granted.

It’s best if grandparents ask for visitation when a custody case is first pending. But if they didn’t do that – and most don’t – they should know they can (and should) make a request later. Custody orders are often modified and reopened as children grow older, and this is a perfect time for grandparent visitation to be added. Grandparents with their attorneys can work with their children and their attorneys to formalize an agreement on when and how often visits with the grandchildren occur.

Hopefully mom and dad can see the value of this request. Grandparents are important people, and if they are willing and able to be involved, everyone wins. Let’s face it, in many cases grandparents are doing the work of parents when there are suddenly two single parent homes. If mom and dad are relying on grandma and grandpa to be after-school chauffeurs, homework tutors or dinner providers, surely mom and dad can find a way to ensure that these extra hands and this extra love is always around for their children.

Grandparents are often raising their grandchildren outright. 

Finally, if mom and dad are having trouble taking care of themselves due to mental or physical health issues, addictions, criminal activity or if they simply cannot keep their children healthy and safe, grandparents can petition the court for custody. There is a special custody process for grandparents in North Carolina, which bypasses some of the steps in the traditional foster care process.

Across the country, 2.7 million grandparents are raising grandchildren, up 7 percent from 2009, according to Census data.

Grandparents really are special.

Whether they are picking up grandkids from daycare, attending dance recitals and soccer games, visiting from out of town, or raising grandchildren, grandparents are special.

I think Alex Haley, renowned author of “Roots: The Saga of an American Family,” said it best. “Nobody can do for little children what grandparents do. Grandparents sort of sprinkle stardust over the lives of little children.”

Why would any of us want to deprive our children of that?