Did you know that grandparents have standing to seek custody of their grandchildren in North Carolina? It's true, but only in certain situations. Biological and adoptive parents have a constitutional right to parent their children that supersedes everyone else on the planet, so for the most part if you don't want your child to see Grandma, your word is law.
But... there are exceptions to every rule. The two most common exceptions to parents' protected status are (1) when the parent (or parents) with custody are shown to be unfit parents or at least to have acted inconsistent with their constitutionally protected status; and (2) when grandparents seek to intervene in an ongoing custody dispute between parents.
The important thing to remember if you find yourself in a custody litigation involving grandparents is that if the court grants them specific visitation rights, the grandparents will have a seat at the custody table from that moment forward until your child reaches age 18.
I recently had to research this issue in a case where the maternal grandparents were granted visitation in a court order. The child's mother then passed away unexpectedly leaving the father with sole custody, except for the grandparents court-ordered visitation. I was surprised to learn that the law makes no ongoing distinction between the father and the grandparents when reviewing the original order. Anyone who has been granted visitation rights has standing to seek a modification of custody if they can show a substantial change of circumstances has occured affecting the child.
Before your freak out, let me say the father in my example still had his constitutionally protected status against the grandparents. So, while they can request modification, the law appears to restrict the Court from granting the grandparents more than "reasonable visitation." This would mean legal custody (i.e. decisionmaking authority) rests solely with parent in this situation, but I'm troubled by the fact that the appellate courts in NC have put no explicit limitation on what visitation the grandparents can have. Presumably, they could be awarded anything less than 50% physical custody and that could arguably be called "visitation."
Showing posts with label visitation. Show all posts
Showing posts with label visitation. Show all posts
Wednesday, May 5, 2010
Thursday, March 25, 2010
A Wink and a Nod to the Audience...
Being "self-referential" has a long and distinguished history in the theater, from Shakespeare's "play within the play," to Ferris Bueller narrating all the way through his "Day Off." In that fine tradition, this entry will be an online essay about child custody in an online world.
Not too long ago, I tried a "relocation" case there Mom wanted to move out of state with her two small children to be closer to her parents. I represented Dad, who wanted the children to stay here in North Carolina. The judge allowed Mom to move, but gave my client liberal visitation rights, including a mandate that Mom establish a webcam at her new residence so Dad could "visit" his children online.
It turns out our judge was a few months ahead of the curve. Recently, the North Carolina General Assembly passed a law clarifying that online mediums like email, Skype, and even online video gaming could be the subject to custody orders by North Carolina judges.
Arguably, this was the law already. Judges are generally empowered in North Carolina to order parents to do anything the judge determines to be "in the best interests of the child." The value of this new law, however, it two-fold. If a judge didn't know these avenues were available to parents to communicate with their children, now it's part of a familiar statutory scheme all judges rely on. If a judge was already experimenting with online contact as a formal means of visitation, the law also makes it clear these new online options should supplement, not replace, traditional in-person visitation.
If you find yourself in a situation where your former partner is now living, or plans to live, a great distance from you, "virtual visitation" is an issue you should be discussing with your attorney. In my experience, if your judge isn't already thinking about online visitation options, he or she will probably be open to the idea as long as you take the time to present evidence about it. Make sure your judge knows you are Internet savvy. Make sure you explain to the judge what Skype is and why it's important to put online access to your children in your custody order. I think you'll be pleasantly rewarded.
Not too long ago, I tried a "relocation" case there Mom wanted to move out of state with her two small children to be closer to her parents. I represented Dad, who wanted the children to stay here in North Carolina. The judge allowed Mom to move, but gave my client liberal visitation rights, including a mandate that Mom establish a webcam at her new residence so Dad could "visit" his children online.
It turns out our judge was a few months ahead of the curve. Recently, the North Carolina General Assembly passed a law clarifying that online mediums like email, Skype, and even online video gaming could be the subject to custody orders by North Carolina judges.
Arguably, this was the law already. Judges are generally empowered in North Carolina to order parents to do anything the judge determines to be "in the best interests of the child." The value of this new law, however, it two-fold. If a judge didn't know these avenues were available to parents to communicate with their children, now it's part of a familiar statutory scheme all judges rely on. If a judge was already experimenting with online contact as a formal means of visitation, the law also makes it clear these new online options should supplement, not replace, traditional in-person visitation.
If you find yourself in a situation where your former partner is now living, or plans to live, a great distance from you, "virtual visitation" is an issue you should be discussing with your attorney. In my experience, if your judge isn't already thinking about online visitation options, he or she will probably be open to the idea as long as you take the time to present evidence about it. Make sure your judge knows you are Internet savvy. Make sure you explain to the judge what Skype is and why it's important to put online access to your children in your custody order. I think you'll be pleasantly rewarded.
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