Absolute Divorce: Often referred to as a "simple divorce" or "no-fault" divorce, a type of divorce in N.C. that allows the parties to end the marriage and terminate property rights. Parties can enter into another marriage after the divorce is final. There are legal requirements that must be satisfied before filing for absolute divorce.

What do I need to prove to get a divorce in North Carolina?

NCGS § 50-6 requires two criteria: (1) husband and wife to live separate and apart continuously for one year; and (2) husband or wife must reside in the State for at least six months prior to filing the divorce action. No written separation agreement is needed to get a divorce in North Carolina.

Does it matter who files for the divorce?

No, either husband or wife may file for divorce. The party who files for divorce is responsible for filing the appropriate papers with the court.

Can my spouse stop me from getting a divorce?

No, your spouse cannot stop you from getting a divorce, even if he/she does not want one. North Carolina General Statute 50-6 requires that husband and wife live separate and apart continuously for one year, and either party must reside in the state for at least six months prior to the commencement of the divorce action.

How do I prove that my spouse and I have been living separate and apart for one year?

The notarized-verified complaint will serve as proof that husband and wife have lived separate and apart for one year. In the event that the defendant-spouse disputes the date of separation in a written answer, evidence may be presented to the court that supports the date the plaintiff/petitioner believed the separation occurred. Evidence may include but is not limited to: a change of address card filed with the post office or a driver’s license reflecting a change of address.

Do I need an agreement or court order to be legally separated?

An agreement or court order is not necessary. Husband and wife are legally separated once they begin living separate and apart and at least one spouse intends to remain that way.

Will the one-year separation start over if my spouse and I resume marital relations?

"Resumption of marital relations" is defined as voluntary renewal of the husband and wife relationship, as shown by the totality of the circumstances. G.S. 52-10.2. Where there has been a resumption of marital relations during the period of separation, the statutory one-year period will be tolled (stopped) and the one-year period that is required will start over. Isolated incidents of sexual intercourse do not toll the statutory one-year period from running, provided such incidents do not amount to a "resumption of marital relations." Whether or not such resumption of marital relations occurs is to be determined by "the totality of the circumstances."

How do I get marital property, post separation spousal support and alimony?

In order to preserve the right to alimony and marital property, a claim must be asserted before the divorce is granted. There are no pre-printed forms available in the SelfServe Center to assist in filing an action of this nature. It is important to seek the legal advice of an attorney for assistance with any marital property claim(s). The failure to assert a claim timely will cut off the right to those claims in the future. For help locating an attorney, contact the Mecklenburg Lawyer’s Referral Service at www.MeckBar.org/LRS, or obtain a copy of the Unbundled Service List.

Where do I get the forms to file for divorce? Am I required to fill in every blank on the forms?

Forms to file for divorce may be obtained from the SelfServe Center, located on the third floor of the Mecklenburg County Courthouse. Yes, your divorce forms are not complete until you fill-in all the blanks requesting information. Please fill in each blank ensuring the information you provide is true to the best of your knowledge.

Can my spouse stop me from getting a divorce?

No, your spouse cannot stop you from getting a divorce, even if he/she does not want one. North Carolina General Statute 50-6 requires that husband and wife live separate and apart continuously for one year, and either party must reside in the state for at least six months prior to the commencement of the divorce action.

How much does it cost to file for divorce?

Please check with the Clerk of Court to determine what the applicable filing fee will be. The filing fee is to be paid to the Clerk of Court at the time of filing. The method of payment required is cash or money order (no personal checks).

Can I list the number of child/children that were born to the parties in lieu of those born during the marriage in the divorce complaint?

No, the complaint only asks for the number of child/children born within the marriage.

On the Certificate of Absolute Divorce Box #7 should I enter the number of child/children born during the marriage regardless of age?

No, list only the number of minor children.

How do I serve my spouse?

North Carolina law does not permit a plaintiff to personally serve the defendant. Service of process must comply with Rule 4 of the North Carolina Rules of Civil Procedure. There are three methods of service that may be used to serve the other party.

• The first method of service is referred to as personal service. The proper person to personally serve the other party of the action is a sheriff in the county where service is to be made or by a private process server appointed by the court. If personal service is to be made outside of the State, personal service may be completed by anyone who is not a party to the action and is not less than 21 years of age or anyone authorized by the law of the place where service is to be made.
• The second method of service is by certified mail, return receipt, restricted delivery. If this method is used, a copy of the summons and complaint must be mailed to the other party by registered or certified mail, return receipt requested addressed to the party to be served.
• The third method is referred to as notice of service of process by publication. This is a last resort method of service of process and should not be used unless the party cannot otherwise be served. To use this method a notice regarding the action is placed in the newspaper in the county where the defendant last resided. The notice shall be published once a week for a period of three consecutive weeks. This alternative method for service is technically more complicated than the other methods, so that it may be difficult to effectuate without the assistance of an attorney. Service by publication also increases the standard waiting period from thirty to forty days (measured from the date of the first newspaper notice).

Can I have my spouse sign the papers if he/she agrees to the divorce?

Yes. There are two forms that are designated for the defendant. The documents are labeled “Acceptance of Service of Process & General Appearance” and “Defendant’s Answer to Divorce Complaint & Waiver.” If both spouses are in agreement, the defendant may in the presence of a notary sign and have the two documents notarized. When going to the notary the defendant must have a copy of the summons and complaint at the time of signing the “Acceptance of Service of Process & General Appearance” and “Defendant’s Answer to Complaint & Waiver.” NOTE: Once the forms are signed and notarized, it is the plaintiff’s responsibility to file the documents with the Civil Clerk of Court.

What should I do when I cannot get my spouse served by one method of service?

You should attempt all other methods of service and/or attempt to obtain a new address for the defendant prior to using notice of service of process by publication as a method of service. See NC ST RCP G.S. §1A-1, Rule 4(j).

Can I serve my spouse with the divorce papers?

No, in this state or outside of this state, proper service is made by:

• A sheriff of the county where the defendant resides;
• United States Post Master; or
• A private process server appointed by the Clerk of Court, or anyone who is not a party and is not less than 21 years of age. See N.C. Rules of Civil Procedure Rule 4(a).

Does my spouse have to sign any documents to accept service?

Yes, depending upon your method of service. The two methods of service that require your spouse’s signature are: Certified mail and Defendant’s Documents labeled “Acceptance of Service of Process & General Appearance” and “Defendant’s Answer to Divorce Complaint & Waiver”. The Defendant’s documents can be found in the Absolute Divorce Packet labeled “Defendant’s Documents”.

What if my spouse is in the military?

If your spouse is in the military and on active duty; he or she is covered by the Servicemembers Civil Relief Act, Public Law 108-189. In a divorce case, this act means that an active duty soldier, who is not available to defend his or her case, cannot generally be defaulted. This act was passed by Congress to provide protection for individuals entering or called to active duty in the military service. It is intended to postpone or suspend certain civil obligations to enable service members to devote full attention to duty. There are numerous protections and if this act might apply in your case, you are urged to contact an attorney.

What should I do if the defendant is not served within the initial 60 days of service?

If service is not completed within the initial 60 days after filing the complaint then the plaintiff must go to the Civil Clerk of Court and ask for an endorsement (extension). An endorsement gives you an additional 60 days to attempt to have the spouse served. The original file must be pulled and the Clerk may issue an endorsement on the original summons. If you do not complete service of process within the first 90 days after filing, the Clerk’s Office will automatically close your file on default. To prevent closure, you must keep your summons active. How this is accomplished depends on your method of service and the location of your original summons.

When the original summons is in the court file:

1. You must go to the Civil Clerk of Court;
2. Pull your divorce file;
3. Get the original summons out of the file; and
4. Ask the Clerk to issue an endorsement. An endorsement gives you an additional 60 days to complete service.

When the original summons is not in the court file:

1. Obtain a blank summons from the Civil Clerk of Court, the SelfServe Center, or from the court website, www.NCcourts.gov/forms
2. Write your name and address in the plaintiff’s section and write your spouse’s name and address in the defendant’s section of the summons
3. Take the summons to the Civil Clerk of Court, pull your divorce file, and request that the Clerk issue the summons.

If the date the Clerk issues the summons is within 90 days of the last preceding summons or within 90 days of the last prior endorsement, you should check the box labeled “Alias and Pluries” on the summons. You must complete one of the two options as many times as necessary until service is complete.

What should I do if I do not have a serviceable address for my spouse?

Attempt to locate a new address for the defendant through a process called “due diligence”. Due diligence is a series of tasks that the plaintiff/petitioner must complete to prove to the court that he/she has done everything reasonable to obtain a serviceable address for the defendant. The process may include, but is not limited to searching the internet, asking friends and family, conducting a department of motor vehicle’s address history search in the state of the defendant’s last known address, and/or checking the official sheriff or police website for detainee information. *Notice of service of process by publication.

Will there be an actual court hearing?

The Civil Clerk of Court will give you a hearing date when you file your Motion for Summary Judgment/Notice of Hearing form. On the hearing date, the file will be reviewed by the assigned judge. There is no requirement to appear and there is no witness testimony at the file review.

How will I know my divorce has been granted?

When you file the Motion for Summary Judgment and Notice of Hearing, Certificate of Divorce, and Judgment of the Divorce, you may attach two prepaid self-addressed envelopes, one addressed to yourself and the other addressed to your spouse. You will receive a filed-stamped copy of the Judgment of Divorce in the mail within three weeks from the date of your Motion for Summary Judgment and Notice of Hearing. If you failed to attach a self-addressed envelope or did not receive notice regarding the status of your divorce, report to the Civil Clerk of Court, pull your file, and check the status of your divorce. The Clerk will not check the status of a divorce case over the phone.

Questions Raised by Parents who have Primary Physical Custody

I'm a parent have primary custody of my child. What can I do to keep the father/mother out of my child’s life?

The only valid reason for filing for custody is TO ENSURE THE SAFETY, SECURITY, AND STABILITY OF THE CHILD. Filing for custody to keep the non-custodial from being involved in the child’s life is not a valid reason.

I'm a parent and I have primary custody of my child. My child’s father/mother pays no child support. Do I have to let the father/mother have visits?

Child Support and Visitation are not connected in any way. Paying or not paying child support has nothing to do with a parent’s visitation with his or her child. Visitation is the right of the child to have a relationship with both parents when they do not live together, not the right of the parent to have visitation with the child. There are circumstances where a parent is financially unable to pay child support, such as when he or she has been injured in an automobile accident or on the job, or has lost his or her job. Children should not miss out on visits with their non-custodial parent because of his or her temporary unfortunate financial circumstances. The law says that both mothers and fathers have an obligation to provide financial support for their children. If you have not sought support from the non-custodial parent through Child Support Enforcement or through Family Court, then you cannot automatically expect non-custodial parent to pay support. If there is an order that requires the child’s father/mother to pay support and he or she does not pay, then your remedy is to file a Motion for Contempt for his or her failure to pay. Please refer to the “Contempt” information packet available at the SelfServe Center.

WARNING: You will not gain any advantage in a custody proceeding by withholding visitation between your child and their father/mother because he/she does not pay child support. You may suffer consequences when you appear in court and you certainly would be punishing your child by withholding visitation.

I'm a parent and I have primary physical custody of my child. My child’s father/mother is behind on paying child support. Can I stop visits until the father/mother pays me what I'm owed?

Child Support and Visitation are not connected in any way. Paying or not paying child support has nothing to do with a parent’s visitation with the child. Visitation is the right of the child to have a relationship with both parents when they do not live together, not the right of the parent to have visitation with the child. There are circumstances where a parent is financially unable to pay child support, such as when he or she has been injured in an automobile accident or on the job, or has lost his or her job. Children should not miss out on visits with their non-custodial parent because of his or her unfortunate financial circumstances. The law says that both mothers and fathers have an obligation to provide financial support for their children. If you have not sought support from the child’s father/mother through Child Support Enforcement or through Family Court, then you cannot automatically expect the father/mother to pay support. If there is an order that requires the father/mother to pay support and he or she does not pay, then your remedy is to file a Motion for Contempt for his or her failure to pay. Please refer to the "Contempt" information packet available at the SelfServe Center.

My spouse and I just separated. My spouse is a great parent and I don’t want to go through a nasty custody battle with him/her. How do we resolve custody of the children without a nasty battle and without the help of an attorney?

A. When parents separate, they sometimes enter into a separation agreement regarding the marital property. They can also address issues such as child custody and visitation and child support. You need an attorney to help you prepare a separation agreement. A separation agreement is a contract between the two parties. If one does not abide by the terms of the agreement, the other party may sue for breach of contract, which also involves retaining an attorney. You can file for custody and remain amicable throughout the process. If you explain to the other parent beforehand that you are filing for custody, he or she will not be shocked and angry. You both will be given the opportunity to participate in mediation before you go to trial. You can come resolve the issues of custody and visitation [but not child support] at mediation.

You can file for custody and enter into a Consent Custody Agreement which you both sign and then have signed by the judge who has been assigned to your particular case. You can avoid having to go through the trial process by entering into such an agreement. You will, however, still need to attend the mandatory Parenting Education class. You can obtain more information about Parenting Education and Consent Custody Agreements.

When my child’s other parent and I lived together, we fought a lot but he/she never hit me. I don’t want my child around the other parent. What can I do to keep the other parent away from us?

Attempting to keep the child’s father/mother from being involved in the child’s life for any reason is not a valid basis for filing for custody. If the other parent has never harmed the child, there is no reason why he/she cannot have visitation with the child, regardless of your feelings about the father/mother and your desire to keep the other parent out of your life. When determining custody, the court will look to decide two main issues: [1] What is in the child’s best interests? and [2] Which of the parents is more likely to foster a relationship between the child and the other parent? If you deliberately interfere with your child’s involvement with the other parent, the court will take that into consideration when determining who gets custody.

It is a different situation, however, if there has been a history of domestic violence between you and your child’s father/mother, and if the domestic violence took place in front of the child, or the child otherwise was affected by it. Although you cannot file for custody just to keep the other parent away from your child, you can file for a Domestic Violence Protective Order (DVPO) against the father/mother if the situation merits protection. Please refer to the "Domestic Violence" information packet available at the SelfServe Center. The law specifically states that in making a custody determination, the court shall consider all relevant factors including acts of domestic violence between the parties, the safety of the child, and the safety of either party. N.C. Gen. Stat. §50-13.2(a).

WARNING: You will not gain any advantage in a custody proceeding nor can you avoid a custody proceeding merely because you filed for a Domestic Violence Protective Order.

I broke up with my daughter’s father/mother and another person who has asked me to marry him/her. Can I file for custody to keep my daughter’s father/mother from being involved in my new life?

NO! The only valid reason for filing for custody is TO ENSURE THE SAFETY, SECURITY, AND STABILITY OF THE CHILD. Filing for custody to keep the father/mother from being involved in the child’s life is not a valid reason. In the eyes of the law, both mothers and fathers have constitutionally protected rights regarding their child. A mother does not have special standing because she gave birth to the child. When determining custody, the court will look to decide two main issues: [1] What is in the child’s best interests? And [2] Which of the parents is more likely to foster a relationship between the child and the other parent? If one parent deliberately interferes with a child’s involvement with the other parent, the court will consider that when determining who gets custody.

I'm a parent and I have primary custody of my child. My child’s father/mother just got released from prison. Do I have to let the father/mother visit my child

In the eyes of the law, Mothers and Fathers have constitutionally protected rights regarding their child. They are on equal footing. A mother does not have a preferred status simply because she gave birth to the child. A parent can lose his or her constitutionally protected status is if he or she “abandons, abuses, or neglects the child.” If the imprisonment of the child’s non-custodial parent was for something unrelated to the child, there is no reason why the non-custodial parent cannot be involved with the child.

Questions Raised by Parents who DO NOT have Primary Physical Custody

I do not have primary physical custody of my child. My child’s father/mother (who has primary custody) will not let me visit with my child. What can I do?

You can file an action for custody. The law says that any parent, relative, or other person, agency, or organization or institution claiming the right to custody of a minor child may institute an action or proceeding for custody of the child. The law says that between the mother and the father, whether natural or adoptive, no presumption shall apply as to who will better promote the interest and welfare of the child. When determining custody, the court will attempt to answer two important questions: [1] what is in the child’s best interests? and [2] which of the parents is more likely to foster a relationship between the child and the other parent? If one parent deliberately interferes with a child’s involvement with the other parent, the court will consider that when determining who gets custody. Your visitation schedule will be determined in great part by the age of your child and your previous involvement with the child. One parent does not have the right to prohibit visitation between the child and the other parent absent an order which specifically prohibits visitation. Visitation is the child’s right, not the parent’s. If there is no custody order in place and no one has filed for custody, then you should do so. If there is a custody order in place and the other parent does not follow it [in other words, the other parent violates the Court Order], then you need to file a Motion for Contempt against that parent. Please refer to the "Contempt" information packet available at the SelfServe Center.

HELPFUL HINT: When you file your pleadings, if you indicate that you are seeking custody, not just visitation, you may have more flexibility to negotiate when you go to mediation.

I do not have primary physical custody of my child. My child’s father/mother (who has primary physical custody) will not let me have overnight visits with my five year-old son although the child’s father/mother lets his/her mother and strangers keep my son overnight. What can I do?

You can file an action for custody. The law says that any parent, relative, or other person, agency, or organization or institution claiming the right to custody of a minor child may institute an action or proceeding for custody of the child. The law says that between the mother and the father, whether natural or adoptive, no presumption shall apply as to who will better promote the interest and welfare of the child. When determining custody, the court will attempt to answer two important questions: [1] what is in the child’s best interests? and [2] which of the parents is more likely to foster a relationship between the child and the other parent? If the other parent deliberately interferes with your child’s involvement with you, the court will consider that when determining who gets custody.

One parent does not have the right to prohibit visitation between the child and the other parent absent an order which specifically prohibits visitation. Visitation is the child’s right, not the parent’s. If there is no custody order in place and no one has filed for custody, then you may want to consider filing for custody. If there is a custody order in place and the other parent does not follow it [in other words, the other parent violates the Court Order], then you may consider filing a Motion for Contempt against that parent. Please refer to the "Contempt" information packet available at the SelfServe Center.

Your visitation schedule will be determined in great part by the age of your child and your previous involvement with the child. Please refer to the Chart entitled Developmental Appropriateness of Time Away from Primary Parent (by Kim T. Ferguson, Psychologist) to understand what the Court may decide regarding visitation schedules with your child.

HELPFUL HINT: When you file your pleadings, if you indicate that you are seeking custody, not just visitation, you may have more flexibility to negotiate when you go to mediation.

I do not have primary physical custody of my child. My children’s father/mother (who has primary custody) will let me see my daughters only when it is convenient for him/her. It does not matter what I have planned for the girls. If their father/mother does not want them to go, he/she refuses to allow me to have them. I have no say-so about if and when I see my daughters. What can I do?

You might consider filing an action for custody. The law says that any parent, relative, or other person, agency, or organization or institution claiming the right to custody of a minor child may institute an action or proceeding for custody of the child. The law says that between the mother and the father, whether natural or adoptive, no presumption shall apply as to who will better promote the interest and welfare of the child.

When determining custody, the court will attempt to answer two important questions: [1] What is in the child’s best interests? and [2] Which of the parents is more likely to foster a relationship between the child and the other parent? If the other parent deliberately interferes with your child’s involvement with you, the court will consider that when determining who gets custody. Your visitation schedule will be determined in great part by the age of your child and your previous involvement with the child.

One parent does not have the right to prohibit visitation between the child and the other parent absent an order which specifically prohibits visitation. Visitation is the child’s right, not the parent’s. If there is no custody order in place and no one has filed for custody, then you may consider filing for custody. If there is a custody order in place and the other parent does not follow it [in other words, the other parent violates the Court Order], then you may want to consider filing a Motion for Contempt against that parent. Please refer to the "Contempt" information packet available at the SelfServe Center.

HELPFUL HINT: When you file your pleadings, if you indicate that you are seeking custody, not just visitation, you may have more flexibility to negotiate when you go to mediation.

I'm a parent without primary physical custody of my child. I have been paying child support regularly until I lost my job. I have been seeing my son regularly, also. Now that I'm behind in my support, my son’s father/mother (who has primary physical custody) refuses to allow me to visit with my son or even to call to talk to him on the telephone. Can the custodial parent do this? What are my rights?

Child Support and Visitation are not connected in any way. Paying or not paying child support has nothing to do with a parent’s visitation with their child. Visitation is the right of the child to have a relationship with both parents when they do not live together, not the right of the parent to have visitation with the child. There are circumstances where a parent is financially unable to pay child support, such as when he or she has been injured in an automobile accident or on the job, or has lost his or her job. Children should not miss out on visits with their parent because of the parent’s unfortunate financial circumstances.

The law says that both mothers and fathers have an obligation to provide financial support for their children. If there is an order that requires you to pay support and you cannot, then you might consider filing a Motion to Modify Child Support, Form AOC-CV-600 which you can find in the SelfServe Center. Your child’s other parent cannot withhold visitation between you and your child. This behavior punishes the child. Please refer to the "Modification Child Support" information packet available at the SelfServe Center. One parent does not have the right to prohibit visitation between the child and the other parent absent an order which specifically prohibits visitation. Visitation is the child’s right, not the parent’s. If there is no custody order in place and no one has filed for custody, then you should do so in order to have the Court establish specific visitation arrangements. If there is a custody order in place and the other parent does not follow it [in other words, the other parent violates the Court Order], then you need to file a Motion for Contempt against that parent. Please refer to the "Contempt" information packet available at the SelfServe Center.

I'm a FATHER. When my child’s mother and I were together, she became involved with another man. When she later became pregnant and gave birth, she did not list the child’s father on the birth certificate. She will not let me be involved with the baby. The baby looks exactly like I looked as an infant. I’m sure that he is my child. What can I do to prove that he is my child and to be allowed to be involved in his life?

You might consider filing for custody and asking the court to order Mother to produce the child for a paternity test. Be prepared to pay for the costs of the test. Please refer to the "Paternity" information packet available at the SelfServe Center. WARNING: If Mother was married at the time she gave birth and she listed her husband’s name on the birth certificate, then there is a presumption that this man is the child’s father. Just getting a paternity test is not enough to rebut the presumption that the husband is the father. It is difficult, but not impossible, to rebut the presumption. Consult with an attorney if you face this situation.

I'm a parent and I have primary custody of my child. My child’s father/mother just got released from prison. Do I have to let the father/mother visit my child?

In the eyes of the law, Mothers and Fathers have constitutionally protected rights regarding their child. They are on equal footing. A mother does not have a preferred status simply because she gave birth to the child. A parent can lose his or her constitutionally protected status is if he or she “abandons, abuses, or neglects the child.” If the imprisonment of the child’s non-custodial parent was for something unrelated to the child, there is no reason why the non-custodial parent cannot be involved with the child.

Non-parent parties may include the following: Grandparents, Aunts, Uncles, Cousins, Neighbors, and others not related to the child. NC law states that any relative, or other person, agency, organization or institution claiming the right to custody of a minor child MAY institute an action or proceeding for custody of the child.

We are GRANDPARENTS. Our son/daughter recently got a divorce. Their ex-wife/husband refuses to allow us any visitation with our grandchildren, ages two and four, whom we cared for throughout their entire lives while their parents worked and attended school. What are our rights?

Grandparents may sue for visitation rights only when the custody of the minor children is being or has been litigated or when the minor children are in the custody of a step-parent or relative. The law does not allow a grandparent to seek visitation where the children are living with their parents in an intact family. N.C. Gen. Stat. §50-13.1(a). There is a specific Court of Appeals decision that found that the grandparents had no right to proceed under any of the custody statutes which allow grandparents to sue for custody or visitation with a minor child because in that case the father was dead and the children were living with their mother in an intact family. Shaut v. Cannon, 136 N.C. App. 834 (2000).

The law allows a grandparent who qualifies to bring an action for visitation. The law says that an order for custody of a minor child may provide visitation rights for any grandparent of a child as the Court, in its discretion, deems appropriate. As used in the subsection “grandparent” includes the biological grandchild of a child adopted by a step-parent or relative of the child, where a substantial relationship exists between the grandparent and the child. The law also states that where the parental rights of both biological parents have been terminated, under no circumstances shall the biological grandparent be entitled to visitation rights of that child. N.C. Gen. Stat. §50-13.2(b1).

If Mother or Father has filed for custody, then you can move to intervene in that action to ask the court to award you visitation. Please refer to the "Nonparent Custody" for more information.

We are GRANDPARENTS. Our son recently died. The children live with their mother. She refuses to allow us any visitation with our grandchildren, ages two and four, whom we cared for throughout their entire lives while their parents worked and attended school. What are our rights?

Grandparents may sue for visitation rights only when the custody of the minor children is being or has been litigated or when the minor children are in the custody of a step-parent or relative. The law does not allow a grandparent to seek visitation where the children are living with their parents in an intact family. N.C. Gen. Stat. §50-13.1(a).

There is a specific Court of Appeals decision that found that the grandparents had no right to proceed under any of the custody statutes which allow grandparents to sue for custody or visitation with a minor child because in that case, like yours, the father was dead and the children were living with their mother in an intact family. Shaut v. Cannon, 136 N.C. App. 834 (2000).

We are GRANDPARENTS. Our daughter and her husband recently moved out of our home with their three children who are under the age of three. All of them lived with us for the past thee years but now our daughter and her husband will not let us visit with our grandchildren. Can we file an action for visitation?

Grandparents may sue for visitation rights only when the custody of the minor children is being or has been litigated or when the minor children are in the custody of a step-parent or relative. The law does not allow a grandparent to seek visitation where the children are living with their parents in an intact family. N.C. Gen. Stat. §50-13.1(a). Your grandchildren are living with their parents in an intact family, so you have little chance of succeeding on your claim for visitation under these facts.

Parents have a paramount right to custody of their children. That right includes the right to determine with whom their children shall associate, including their grandparents.

We are GRANDPARENTS. The Department of Social Services (DSS) terminated the rights of the parents of our grandchild because the mother and father neglected her. Do we have any rights to visitation with her?

NO. The law states that where the parental rights of both biological parents have been terminated, under no circumstances shall the biological grandparent be entitled to visitation rights of that child. N.C. Gen. Stat. §50-13.2(b1).

I'm a GRANDMOTHER. My 16 year-old son and his 16 year-old girlfriend gave birth to a baby and now the baby’s other grandmother will not allow my son or me to have any involvement with the baby. What are his rights? What are my rights? Do I have any responsibility for this baby?

Your son has just as many rights to that child as does the mother. However, in the eyes of the law, your son is still a minor based upon his age and so you are responsible for him as well as his new baby. Your son cannot bring suit by himself since he is too young. You [and your husband, if you’re married] must bring an action for custody on behalf of your minor son against the baby’s mother and the other grandparents.

Since your son is still a minor, and if the baby lives with his mother and maternal grandparents, the maternal grandparents can bring an action against you and your son for child support.This is a situation in which you will want to consult an attorney before you file your pro se custody action so that you understand all the legal issues involved in this situation. You can still file for custody without an attorney, but it will not be as simple and straightforward as other custody claims.

I'm an AUNT. The Department of Social Services took custody of my nieces and nephews because the mother and father neglected them. What can I do for my nieces and nephews?

First, you need to contact the Department of Social Services to let them know that you are interested in taking care of the children. DSS may not know that you are willing and/or able to do so, so contact that agency.

If you want to seek custody of your nieces and nephews, you may file for custody. The law says that nay parent, relative or other person, agency, or organization or institution claiming the right to custody of a minor child may institute an action or proceeding for custody of the child. Since you are a third party [not one of the parents], you must overcome what the law calls the “constitutionally-protected paramount right of parents to custody care and control of their children.” Parents stand on a sacred pedestal by [1] being unfit, [2] by acting inconsistently with their protected status as parents, or [3] that the parents have abandoned or neglected their child.

I'm a FRIEND OF THE MOTHER. The mother is addicted to drugs and cannot take care of herself. She does not work. I'm taking care of her children. What can I do to get custody of the children?

If you want to seek custody of your grandchildren, you may file for custody. The law says that any parent, relative, or other person, agency, or organization or institution claiming the right to custody of a minor child may institute an action or proceeding for custody of the child. Since you are a third party [not one of the parents], you must overcome what the law calls the “constitutionally-protected paramount right of parents to custody care and control of their children.” Parents stand on a sacred pedestal in the eyes of the law. You must show that the parents knocked themselves off that sacred pedestal by [1] being unfit, [2] by acting inconsistently with their protected status as parents, or [3] that the parents have abandoned or neglected their child.

You will need to name both the mother and the father of the child who is the subject of the custody action. If you do not know the father, then you will need to name him “John Doe.” You will need to file a Notice of Service by Publication in order to serve this person. You will need the help of an attorney to accomplish this task. Please refer to the section on "Service of Process" for more information on this topic.

I'm an UNCLE. My sister has serious mental problems and is homeless. I do not know who the child’s father is. Can I still try to get custody of my nephew/niece?

If you want to seek custody of your niece/nephew, you may file for custody. The law says that any parent, relative, or other person, agency, or organization or institution claiming the right to custody of a minor child may institute an action or proceeding for custody of the child. Since you are a third party [not one of the parents], you must overcome what the law calls the “constitutionally-protected paramount right of parents to custody care and control of their children.” Parents stand on a sacred pedestal in the eyes of the law. You must show that the parents knocked themselves off that sacred pedestal by [1] being unfit, [2] by acting inconsistently with their protected status as parents, or [3] that the parents have abandoned or neglected their child.

You will need to name both the mother and the father of the child who is the subject of the custody action. If you do not know the father, then you will need to name him “John Doe.” You will need to file a Notice of Service by Publication in order to serve this person. You will need the help of an attorney to accomplish this task. Please refer to the section on "Service of Process" for more information on this topic.

I'm NO RELATION to the child. My neighbor asked me to care for her baby while she ran an errand. That was nearly a year ago. I’ve not heard from her and she has never called about her baby. Do I have to be a relative to file for custody?

No, you do not need to be a relative of the child in order to file for custody. The law says that any parent, relative, or other person, agency, or organization or institution claiming the right to custody of a minor child may institute an action or proceeding for custody of the child.

You will need to file a "Third Party Action for Custody" against Mother and Father. You must name both the mother and the father of the child who is the subject of the custody action. If you do not know the father, then you will need to name him John Doe. You will need to file a Notice of Service by Publication in order to serve this person. You will need the help of an attorney to accomplish this task. Please refer to the section on "Service of Process" for more information on this topic.