When grandparents learn their child is getting divorced, the first fear is often whether they will still get to visit their grandchildren.

Do I have visitation rights to see my grandchild?

Maybe but timing is very important in determining issues about visitation for grandparents. If you wait, you could lose your right to even make a claim for visitation.

There are four statutes that let a grandparent to maintain an action for custody or visitation of their grandchild:

(N.C. Gen. Stat. §50-13.1(a)) — “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.”

(N.C. Gen. Stat. §50-13.2(b1)) — “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….”

(N.C. Gen. Stat. §50-13.2A) — “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. Under no circumstances shall a biological grandparent of a child adopted by adoptive parents, neither of whom is related to the child and where parental rights of both biological parents have been terminated, be entitled to visitation rights. A court may award visitation rights if it determines that visitation is in the best interest of the child…”

(N.C. Gen. Stat. §50-13.5(j)) — “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 G.S. 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. Under no circumstances shall a biological grandparent of a child adopted by adoptive parents, neither of whom is related to the child and where parental rights of both biological parents have been terminated, be entitled to visitation rights.”

In N.C., when it comes to grandparents’ rights the courts have clearly distinguished custody from visitation. The basic law is that grandparents only have a right to intervene and seek visitation during an ongoing custody case. Grandparents generally cannot seek visitation once the parents have agreed to custody or a court has decided custody. If you are a grandparent and you are worried about whether you will get to see your grandchildren it is very important you seek the advice of counsel early.