ARIADNE EAKETT,
Plaintiff,
v
.
DAVID EAKETT,
Defendant,
v.
GEORGE THOMAS EAKETT,
Intervenor.
Robert E. Riddle, P.A., by Diane K. McDonald, for intervenor-
appellant.
Blanchard, Bowen, Newman and Justice, by Ronald G. Blanchard
and Ronald E. Justice, for plaintiff-appellee.
EAGLES, Chief Judge.
Intervenor George Thomas Eakett appeals from the trial court's
order dismissing his motion requesting visitation rights with his
grandchild. Intervenor's sole argument on appeal is that the trial
court abused its discretion by denying intervenor the right to
proceed with the merits of his request for visitation. After
careful review of the record and briefs, we affirm.
Plaintiff Ariadne Eakett married defendant David Eakett on 12
June 1996. During their marriage, plaintiff and defendant had one
child, Oscar Wilde Eakett, born on 2 June 1999. Plaintiff and
defendant separated on 17 August 1999. Plaintiff filed a complaintfor custody of Oscar, child support and divorce from bed and board
on 18 August 1999. Defendant did not appear and was not
represented at the hearing on plaintiff's complaint. Plaintiff was
awarded custody of Oscar by the trial court's order dated 30
September 1999.
Intervenor is Oscar's paternal grandfather and defendant's
father. Intervenor cared for Oscar several days a week while
plaintiff worked in Asheville. Plaintiff worked in the Asheville
area after plaintiff and defendant's separation. Approximately
three months after the separation, plaintiff ended her employment
in Asheville. After plaintiff stopped working in Asheville, she
refused to allow intervenor any contact with his grandson.
On 15 April 2002 intervenor moved to intervene and also filed
a motion in the cause seeking visitation rights. The trial court
granted the motion to intervene, but denied the motion in the cause
on 5 June 2002. Intervenor appeals.
Intervenor argues that the trial court misapplied the law by
requiring intervenor to allege and prove that plaintiff and Oscar
were not an intact family or that the underlying custody
controversy had become active. According to intervenor's
interpretation, G.S. § 50-13.5(j) allows grandparents to intervene
and request visitation even when the custody of a minor child has
been determined and no ongoing custody dispute exists. Intervenor
argues that upon a showing of changed circumstances, the
grandparent should be awarded visitation under G.S. § 50-13.5(j) in
the discretion of the trial court. We disagree. Intervenor argues that the trial court erred by granting the
motion to dismiss for failure to allege a claim upon which relief
could be granted. Dismissal of a complaint is appropriate “(1)
when the complaint on its face reveals that no law supports
plaintiff's claim; (2) when the complaint on its face reveals the
absence of fact sufficient to make a good claim; (3) when some fact
disclosed in the complaint necessarily defeats plaintiff's claim.”
Jackson v. Bumgardner, 318 N.C. 172, 175, 347 S.E.2d 743, 745
(1986) (citing Oates v. JAG, Inc., 314 N.C. 276, 333 S.E.2d 222
(1985)). When a court considers a motion to dismiss, “all
allegations of the complaint are deemed true.” Shaut v. Cannon,
136 N.C. App. 834, 835, 526 S.E.2d 214, 215 (2000) (citing Grant v.
Insurance Co., 295 N.C. 39, 243 S.E.2d 894 (1978)). Here,
intervenor's complaint did not state a cause of action even if all
of the allegations in the complaint are taken as true.
Accordingly, we affirm the trial court's order dismissing
intervenor's motion in the cause for visitation privileges.
Four North Carolina statutes empower grandparents to request
visitation rights in different circumstances. G.S. § 50-13.1(a)
grants grandparents the broad privilege to institute an action for
custody or visitation, as allowed in G.S. §§ 50-13.2(b1), 50-13.2A,
and 50-13.5(j). G.S. § 50-13.2(b1) allows grandparents to receive
visitation privileges as part of an ongoing custody dispute. G.S.
§ 50-13.2A permits a biological grandparent to request visitation
with the grandchild if the grandchild is adopted by a stepparent orrelative of the child, provided the child and grandparent have a
substantial relationship.
The fourth statute, G.S. § 50-13.5(j), is at issue here. The
statute reads, in pertinent part:
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.
G.S. § 50-13.5(j)(2001)(emphasis added). Intervenor contends that
this statute allows him to intervene and petition the court for
visitation privileges with his grandson. Intervenor's suggested
interpretation of G.S. § 50-13.5(j) does not agree with the long-
standing public policy of North Carolina. Our Supreme Court held
that the four aforementioned statutes only apply in very limited
situations: “Under [G.S. §§ 50-13.1(a), 50-13.2(b1), 50-13.2A, and
50-13.5(j)], a grandparent's right to visitation arises either in
the context of an ongoing custody proceeding or where the minor
child is in the custody of a stepparent or a relative.” McIntyre
v. McIntyre, 341 N.C. 629, 634, 461 S.E.2d 745, 749 (1995). This
public policy has been designated the “intact family” rule. See
McDuffie v. Mitchell, ____ N.C. App. ____, 573 S.E.2d 606 (2002);
Price v. Breedlove, 138 N.C. App. 149, 530 S.E.2d 559, disc. rev.
denied, 353 N.C. 268, 546 S.E.2d 111 (2000); Shaut v. Cannon, 136
N.C. App. 834, 526 S.E.2d 214 (2000); Montgomery v. Montgomery, 136
N.C. App. 435, 524 S.E.2d 360 (2000); Penland v. Harris, 135 N.C.
App. 359, 520 S.E.2d 105 (1999) and Hill v. Newman, 131 N.C. App.793, 509 S.E.2d 226 (1998). In a case that does not involve
adoption by a stepparent or other relative, a grandparent must
prove that the child's family is not intact before the grandparent
can intervene to request visitation with his grandchild. See
McDuffie, ___ N.C. App. at ____, 573 S.E.2d at 608 (“[T]he statute
does not grant grandparents the right to sue for visitation when no
custody proceeding is ongoing and the minor children's family is
intact.”)(emphasis in original). See also Montgomery, 136 N.C.
App. at 437, 524 S.E.2d at 362 (“[G]randparents have standing to
seek visitation with their grandchildren when those children are
not living in a McIntyre 'intact family.'”).
When grandparents initiate custody lawsuits under G.S. § 50-
13.1(a), those grandparents are not required to prove the
grandchild is not living in an intact family in order to gain
custody. See McDuffie; Sharp v. Sharp, 124 N.C. App. 357, 477
S.E.2d 258 (1996). Instead, the grandparent must show that the
parent is unfit or has taken action inconsistent with her parental
status in order to gain custody of the child. See Petersen v.
Rogers, 337 N.C. 397, 445 S.E.2d 901 (1994); Sharp, 124 N.C. App.
357, 477 S.E.2d 258. The requirement to show unfitness if a
grandparent initiates a custody dispute is consistent with a
parent's constitutionally protected right to the care, custody and
control of the child. Troxel v. Granville, 530 U.S. 57, 147 L. Ed.
2d 49 (2000); Price v. Howard, 346 N.C. 68, 484 S.E.2d 528 (1997)
and Petersen v. Rogers, 337 N.C. 397, 445 S.E.2d 901 (1994). Therequirement to show unfitness protects the parent's right to
control with whom his child associates on a daily basis.
Similarly, the intact family rule protects the parental right
“to determine with whom [her] children shall associate.” Sharp,
124 N.C. App. at 360, 477 S.E.2d at 260 (quoting Petersen, 337 N.C.
397, 445 S.E.2d 901 (1994)). A grandparent cannot initiate a
lawsuit for visitation rights unless the child's family is already
undergoing some strain on the family relationship, such as an
adoption or an ongoing custody battle. The grandparent is a third
party to the parent-child relationship. Accordingly, the
grandparent's rights to the care, custody and control of the child
are not constitutionally protected while the parent's rights are
protected. Intervenor's interpretation of the statute would
authorize interference with those constitutionally protected
parental rights. Under intervenor's proposed reading of G.S. § 50-
13.5(j), any custody order entered by a trial court could be re-
opened upon a grandparent's motion asserting that he or she was not
authorized enough visitation with his or her grandchildren.
Although intervenor's interpretation might produce a stronger
grandparent-grandchild relationship, it would provide a mechanism
by which a grandparent could disrupt a stable family where no
disruption previously existed.
Intervenor contends that he was not allowed to present
evidence on the question of whether his grandchild lived in an
intact family. In fact, no action had been taken in reference to
the child's custody for over one year before intervenor filed hiscomplaint. The most recent court action was the order awarding
custody to plaintiff. A single parent and her child can constitute
an “intact family” for the purposes of this rule. See Fisher v.
Graydon, 124 N.C. App. 442, 477 S.E.2d 251 (1996), disc. rev.
denied, 345 N.C. 640, 483 S.E.2d 706 (1997). In his complaint,
intervenor did not allege that his grandchild was not part of an
“intact family.” Because of this failure, intervenor's complaint
failed to state a claim upon which relief could be granted. No
hearing upon a change of circumstances under G.S. § 50-13.5(j) was
necessary.
Intervenor's failure to allege the absence of an “intact
family” in his complaint meant that intervenor lacked standing to
intervene. Accordingly, that portion of the trial court's order
allowing intervenor's motion to intervene is reversed. We affirm
the remainder of the trial court's order, which dismissed
intervenor's motion in the cause for visitation.
Affirmed in part, reversed in part.
Judges HUNTER and CALABRIA concur.
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