IN THE COURT OF APPEALS OF NORTH CAROLINA

2021-NCCOA-61

No. COA19-391

Filed 16 March 2021

Wake County, No. 10 CVD 16104

AMY H. ALEXANDER, Plaintiff,

v.

EDWARD D. ALEXANDER, Defendant.

v.

CHARLES ALEXANDER and CLARIA ALEXANDER, Intervenor-Defendants.

Appeal by Plaintiff from orders entered 17 February 2017, 8 May 2017, 6 July 

2017, 29 November 2017, and 30 April 2018 by Judge Anna E. Worley in Wake

County District Court. Heard in the Court of Appeals 18 March 2020.

Jonathan McGirt for Plaintiff-Appellant.

Smith Debnam Narron Drake Saintsing & Myers, L.L.P., by Alicia Jurney, and 

Parker Bryan Family Law, by Amy L. Britt, for Intervenor-DefendantAppellees.

DILLON, Judge.

¶ 1 Plaintiff appeals from various orders culminating in a Permanent Order 

Granting Grandparent Visitation to Intervenor-Defendants and Awarding Attorney’s 

Fees to Plaintiff.

I. Background
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¶ 2 This matter concerns the custody of the child (the “Child”) who was born to 

Plaintiff Amy H. Alexander (“Mother”) and Defendant Edward D. Alexander 

(“Father”). Father is now deceased; therefore, his custody claim has abated. The 

remaining dispute is between Mother and Father’s parents, Intervenor-Defendants 

Charles and Claria Alexander (“Grandparents”), and concerns whether Grandparents 

should enjoy visitation rights with the Child of their deceased son.

¶ 3 Mother and Father were married in 2006. Their Child was born in 2009. In 

2014, when the Child was five years of age, Mother and Father divorced. They 

entered a consent order (the “2014 Consent Order”) agreeing to joint custody.

¶ 4 Two years later, in 2016, Father developed cancer. As Father’s condition 

worsened, he moved in with Grandparents. The Child lived with Grandparents (and 

Father) during Father’s custody periods.

¶ 5 In 2017, Father moved to modify his 2014 Consent Order with Mother. 

Grandparents then moved to intervene and for permanent visitation rights. In 

February 2017, the trial court allowed Grandparents to intervene but put off 

consideration of their motion for visitation rights.

¶ 6 Three months later, in May 2017, as Father’s condition grew more dire, the 

trial court entered an order which essentially granted Grandparents some temporary 

rights regarding the care of the Child. Specifically, the trial court ordered that the 
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status quo be maintained until such time that it ruled on Father’s motion to modify 

the 2014 Consent Order and Grandparents’ motion for visitation rights.

¶ 7 On 8 June 2017, Father died. The trial court dismissed Father’s motion to 

modify the 2014 Consent Order due to mootness. By its terms, the “status quo” order 

remained in effect. Mother, though, sought an order to have Grandparents’ 

temporary rights terminated as she was now the Child’s sole parent.

¶ 8 In 2018, after a hearing on the matter, the trial court entered its permanent 

order (the “2018 Permanent Order”). In the 2018 Permanent Order, the trial court 

awarded Mother primary physical and sole legal custody of the Child but granted 

Grandparents permanent, extensive visitation rights. The trial court also awarded 

Mother some of the attorney’s fees that she had incurred. Mother appealed.

II. Analysis

¶ 9 Mother makes two arguments on appeal, which we address in turn.

A. Grandparent Visitation

¶ 10 Mother argues that the trial court had no statutory authority to award 

Grandparents visitation rights once Father had died and she became the Child’s sole 

parent. Alternatively, Mother argues that any statute which authorizes a court to 

grant grandparents visitation rights is unconstitutional as applied to her in this case 

because the granting of visitation rights to Grandparents violates her constitutional 

rights to raise her Child as she sees fit.
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¶ 11 Indeed, grandparents do not have a constitutional right nor rights under our 

common law to seek visitation as against the rights of a custodial parent(s). See, e.g., 

Montgomery v. Montgomery, 136 N.C. App. 435, 436, 524 S.E.2d 360, 361 (2000). Our 

General Assembly, though, has by statute authorized the granting of visitation rights 

for grandparents in certain instances.

¶ 12 Before considering Mother’s constitutional arguments, we first address 

whether the trial court exceeded its statutory authority to award Grandparents 

visitation rights in this case.

B. Grandparent Visitation - Statutory Authority

¶ 13 The trial court granted Grandparents visitation rights based on Section 50-

13.2(b1) and Section 50-13.5(j) of our General Statutes. N.C. Gen. Stat. §§ 50-

13.2(b1), 13.5(j) (2017).

¶ 14 Section 50-13.2(b1) provides that a trial court may include in a custody order 

terms “provid[ing] visitation rights for any grandparent of the child as the court, in 

its discretion, deems appropriate.” Section 50-13.5(j) provides that after a custody 

determination has been made, grandparents may seek visitation rights where there 

has been a showing of changed circumstances.

¶ 15 The seminal case from our Supreme Court on grandparent visitation rights is 

McIntyre v. McIntyre, 341 N.C. 629, 461 S.E.2d 745 (1995). In that case, the Court 

held that the rights granted to grandparents in Sections 50-13.2(b1) and 50-13.5(j) 
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“do not include that of initiating suit against parents whose family is intact and where 

no custody proceeding is ongoing.” Id. at 635, 461 S.E.2d at 750 (emphasis added).

¶ 16 Following McIntyre, our Court has repeatedly held that grandparents only 

have statutory standing to sue for visitation (where custodial parents are involved)

when “the custody of a child [is] ‘in issue’ or ‘being litigated’” by the parents. Adams 

v. Langdon, 264 N.C. App. 251, 257, 826 S.E.2d 236, 240 (2019) (quoting Smith v. 

Barbour, 195 N.C. App. 244, 251, 671 S.E.2d 578, 584 (2009)).

¶ 17 Here, Grandparents did seek to intervene and be granted visitation rights 

while custody between Father and Mother was being litigated: they filed their motion 

just after Father filed his motion to modify the original 2014 Consent Order. And it 

was while Father’s motion was still pending that the trial court allowed 

Grandparents’ motion to intervene. Accordingly, based on our jurisprudence, since 

the custody of the Child was “in issue” and “being litigated” by the parents, the trial 

court had the statutory authority to allow Grandparents to intervene.

¶ 18 Mother contends, though, that the trial court lost any authority it otherwise 

might have had to grant the intervening Grandparents visitation rights once Father 

died, since at that point there was no longer a custody dispute between her and 

Father. Indeed, an underlying custody dispute between parents abates upon the 

death of one of them. See, e.g., McDuffie v. Mitchell, 155 N.C. App. 587, 590, 573 
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S.E.2d 606, 608 (2002) (“Upon the death of the mother in the instant case, the ongoing 

case between the mother and father ended.”).

¶ 19 We note that our Supreme Court’s decision in McIntyre does not definitively 

resolve this issue, as the grandparents in that case initially filed their claim at a time 

when there was “no [ongoing] custody proceeding” between the children’s parents and 

the “family was intact.” McIntyre, 341 N.C. at 629, 461 S.E.2d at 746. And to 

reiterate, the Court merely held that our statutes do not allow grandparents the right 

of “initiating suit against parents whose family is intact and where no custody 

proceeding is ongoing.” Id. at 635, 461 S.E.2d at 750 (emphasis added).

¶ 20 Our Court, though, has addressed the issue on a number of occasions since 

McIntyre. For instance, two years ago, our Court summarized many of our other cases 

to explain that where grandparents have intervened or at least have been made de 

facto parties while the parents are disputing custody of a child, a resolution or 

abatement of the parents’ custody dispute does not cut off the grandparents’ statutory 

right to have their claim for visitation rights heard:

[T]his Court has recognized where one parent dies in the 

midst of a custody action, but before the grandparent seeks 

to intervene, there was no ongoing custody action in which 

the grandparent could intervene, nor could the 

grandparent initiate a separate action. . . .

However, once grandparents have become parties to a 

custody proceeding—whether as formal parties or as de 

facto parties—then the court has the ability to award or 
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modify visitation even if no ongoing custody dispute exists 

between the parents at the time. This is because once a 

grandparent intervenes in a case, they are as much a party 

to the action as the original parties are and have rights 

equally as broad. Once an intervenor becomes a party, he 

should be a party for all purposes. Thus, there, the trial 

court retained jurisdiction over a pending grandparental 

visitation claim even where the parents resolved their own 

custody claims via consent order.

Adams, 264 N.C. App. at 257-58, 826 S.E.2d at 240 (emphasis in original) (internal 

quotation marks and citations omitted).

¶ 21 In 2004, nine years after McIntyre, our Court considered another case involving 

the rights of grandparents to seek expanded visitation rights against a mother of 

their grandchild after their son (the child’s father) had died. Sloan v. Sloan, 164 N.C. 

App. 190, 595 S.E.2d 228 (2004). In Sloan, the paternal grandparents were granted 

certain temporary visitation rights while the parents were engaged in a custody 

dispute, even though the grandparents had never formally intervened. Id. at 191, 

595 S.E.2d at 229. After the father of the child unexpectedly died, the grandparents 

sought to intervene formally and to protect their visitation rights. Id. at 192, 595 

S.E.2d at 230. Our Court held that since the grandparents had already been awarded 

visitation rights while there was an active custody dispute between the parents, the 

trial court retained jurisdiction after the father died to allow the grandparents to 

formally intervene and to grant the grandparents even greater visitation rights. Id. 

at 196-97, 595 S.E.2d at 232.
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¶ 22 Therefore, we conclude that, based on our jurisprudence, Grandparents had 

statutory standing to seek permanent visitation rights, notwithstanding that Father 

had died, as they had been allowed to intervene during a time when custody between 

Father and Mother was in dispute.1

C. Grandparent Visitation - Constitutional Authority

¶ 23 Having determined that the trial court had statutory authority to award 

visitation rights to Grandparents, we must consider Mother’s challenge that the 2018 

Permanent Order violates her constitutional right to raise her Child as she sees fit.

¶ 24 We first consider Grandparents’ contention that Mother has failed to preserve 

her constitutional argument. We hold that Mother has preserved this argument: 

Mother made constitutional arguments when the trial court considered 

Grandparents’ Motion to Intervene, at a hearing which culminated in the entry of the 

2018 Permanent Order, and in her appellate brief. We note that Mother primarily 

makes a “facial” attack on the grandparent visitation statutes, an argument we find 

 

1 We note Mother’s argument that the trial court lacked authority to enter its “status 

quo” order shortly before Father’s death which granted Grandparents temporary visitation 

rights. However, whether Grandparents were properly granted temporary rights prior to 

Father’s death has no bearing on our analysis regarding whether the trial court had authority 

to enter its subsequent 2018 Permanent Order after Father’s death: Grandparents were 

made parties and had asserted claims for visitation rights prior to Father’s death. Under our 

case law, it was not necessary for the trial court to have granted Grandparents rights before 

Father’s death in order to have authority to grant Grandparents rights after his death. All 

that was necessary was that Grandparents had initiated their claim for visitation prior to 

Father’s death at a time when Father and Mother were litigating custody.
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unconvincing. For instance, clearly Grandparents may be awarded visitation against 

the will of the parents without violating the parents’ constitutional rights where the 

parents have been deemed unfit or otherwise have acted inconsistently with their 

constitutional rights as a parent. See, e.g., Owenby v. Young, 357 N.C. 142, 145, 579 

S.E.2d 264, 266 (2003). Notwithstanding, we turn to address whether these statutes 

are unconstitutional “as-applied” to Mother.2

¶ 25 The United States Supreme Court has long recognized the constitutional right 

of parents to “make decisions concerning the care, custody, and control of their 

children.” Troxel v. Granville, 530 U.S. 57, 66 (2000) (citing several prior decisions). 

Likewise, our Supreme Court has recognized that “parents have a paramount right 

to custody, care and nurture of their children” and that this paramount right 

“includes the right to determine with whom their children shall associate[.]” 

McIntyre, 341 N.C. at 631, 461 S.E.2d at 748 (internal quotation marks omitted). See 

also Petersen v. Rogers, 337 N.C. 397, 402, 445 S.E.2d 901, 904 (1994) (recognizing 

“the paramount right of parents to custody, care, and nurture of their children”).

 

2 See Yee v. Escondido, 503 U.S. 519, 534-35 (1992) (internal citations omitted) 

(“[P]arties are not limited to the precise arguments they made below. Petitioners’ arguments 

that the ordinance constitutes a taking in two different ways, by physical occupation and by 

regulation, are not separate claims. They are, rather, separate arguments in support of a 

single claim -- that the ordinance effects an unconstitutional taking. Having raised a taking 

claim in the state courts, therefore, petitioners could have formulated any argument they 

liked in support of that claim here.”).
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¶ 26 However, the paramount right of parents is “not absolute.” Price v. Howard, 

346 N.C. 68, 76, 484 S.E.2d 528, 533 (1997). For instance, the United States Supreme 

Court has recognized that the State “[a]cting to guard the general interest in [a 

child’s] well being[,] may restrict the parent’s control by requiring school attendance, 

regulating or prohibiting the child’s labor and in many other ways.” Prince v. 

Massachusetts, 321 U.S. 158, 166 (1944). Our Supreme Court has recognized that 

the State may strip parents of their constitutional rights to raise their children in 

certain situations;3 the State can “establish minimum educational requirements and 

standards for this education[;]”4 and the State may require children to undergo 

certain medical treatments, as the constitutionally-protected paramount right of 

parents to custody, care, and control of their children does not extend to neglecting 

the welfare of their children.5

¶ 27 While our Supreme Court has stated that custodial parents have a paramount 

right to determine with whom their children associate, that Court has also 

determined that the State may grant visitation rights to third parties, such as 

 

3 In re Clark, 303 N.C. 592, 607, 281 S.E.2d 47, 57 (1981) (holding that our statutes 

providing for the termination of parental rights in certain situations do not “contravene[] the 

Constitutions of the United States [or] the State of North Carolina”).

4 Delconte v. State, 313 N.C. 384, 402, 329 S.E.2d 636, 647 (1985).

5 Petersen, 337 N.C. at 403-04, 445 S.E.2d at 905 (internal quotation marks omitted).
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grandparents, against the wishes of custodial parents in some situations. McIntyre, 

341 N.C. at 631, 461 S.E.2d at 748.

¶ 28 And in the Troxel case, the seminal case from the United States Supreme Court 

on grandparent visitation statutes, the majority6 of justices on that high Court (in 

separate opinions) refused to hold that such statutes are facially unconstitutional:

We do not, and need not, define today the precise scope of

the parental due process right in the visitation context. In 

this respect, we agree with JUSTICE KENNEDY that the 

constitutionality of any standard for awarding visitation 

turns on the specific manner in which that standard is 

applied and that the constitutional protections in this area 

are best elaborated with care.

Troxel, 530 U.S. at 73 (plurality opinion) (internal quotation marks omitted) (refusing 

to hold that the Washington State grandparent visitation statute was facially 

unconstitutional). The Court recognized that all 50 states have provided grandparent 

visitation rights by statute. Id. at 73 n.1.

¶ 29 In Troxel, the Court held that a grandparent visitation statute was 

unconstitutional as applied where the trial court granted grandparents visitation 

 

6 The plurality opinion was signed onto by four justices. Justice Stevens wrote a 

dissenting opinion recognizing the right to provide for grandparent visitation, writing that 

“it would be constitutionally permissible for a court to award some visitation of a child to a [] 

previous caregiver [in some circumstances].” Troxel, 530 U.S. at 85 (Stevens, J., dissenting). 

Justice Kennedy wrote a dissenting opinion recognizing this power as well, writing that there 

does not need to be any finding that the child has been harmed by her decision to justify 

granting visitation rights. Id. at 94 (Kennedy, J., dissenting).
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rights based on the court’s own determination that said visitation was in the best 

interest of the child, without giving “any material weight” to the wishes of “a fit 

custodial parent[.]” Id. at 72.

¶ 30 While the Court in Troxel did not set forth definitive rules regarding when the 

grant of visitation for grandparents against the wishes of the custodial parent would 

be constitutionally permissible, the Justices did give some hints. For instance, the 

plurality opinion suggests that a trial court may consider granting grandparents 

visitation rights only after giving special weight to the parent’s determination

whether such visitation would be in the child’s best interest:

In an ideal world, parents might always seek to cultivate 

the bonds between grandparents and their grandchildren.

[However,] the decision whether such an intergenerational 

relationship would be beneficial in any specific case is for 

the parent to make in the first instance.

And, if a fit parent’s decision of the kind at issue here 

becomes subject to judicial review, the court must accord at 

least some special weight to the parent’s own determination.

Id. at 70 (emphasis added) (paragraph breaks supplied). The plurality recognizes a 

presumption that the fit parent makes decisions that are in the best interests of her 

child and cannot be overturned merely because a judge believes that a different 

decision would have been better. Id. at 68. Further, the plurality suggests that any 
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visitation order should not adversely “interfere with the parent-child relationship.” 

Id. at 70.

¶ 31 Applying the principles set forth in Troxel, we conclude that the 2018 

Permanent Order is unconstitutional in two main ways.

¶ 32 First, the trial court failed to give deference to Mother’s determination 

regarding with whom her Child may associate. It is not clear from the record whether 

Mother wishes that her Child have no relationship with Grandparents or to what 

extent of a relationship she has deemed appropriate. The trial court needs to make 

findings in this regard. And the court must presume that the Mother’s determination 

is correct. This is not to say that the presumption cannot be constitutionally 

overcome. For instance, there is evidence that the Child has formed a significant 

bond with Grandparents.

¶ 33 Second, even assuming Grandparents are entitled to an order providing 

visitation rights, the extent of visitation granted in the 2018 Permanent Order is 

unconstitutionally generous, as it impermissibly interferes with the parent-child 

relationship between Mother and her Child.7 For instance, the trial court’s grant of 

 

7 While “in certain contexts ‘custody’ and ‘visitation’ are synonymous[,] . . . it is clear 

that in the context of grandparents’ rights to visitation, the two words do not mean the same 

thing.” McIntyre, 341 N.C. at 634, 461 S.E.2d at 749. The trial court erred by awarding 

Mother primary physical custody instead of sole physical custody, and erred by essentially 

awarding Grandparents secondary custody instead of visitation.
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visitation every other Christmas and Thanksgiving is unconstitutional. Mother, as 

the Child’s sole custodial parent, has the right to determine with whom her Child 

spends these major holidays and should not be deprived of any right to spend these 

holidays with her Child. Also, the grant of visitation every other weekend is too 

extensive. Mother, as the Child’s sole custodial parent, has the right to direct how 

her Child spends a large majority of the weekends.

¶ 34 We, therefore, vacate the visitation provisions in the 2018 Permanent Order. 

On remand, the trial court shall apply the appropriate legal standard as set forth in 

Troxel and other binding authority, recognizing the paramount right of Mother to 

decide with whom her Child may associate. We make no determination as to whether 

there is evidence from which findings could be made to overcome Mother’s paramount 

right to justify granting Grandparents visitation rights.

D. Attorney’s Fees

¶ 35 Mother also argues that the trial court abused its discretion in awarding her 

only part of the attorney’s fees she has expended.

¶ 36 Our Supreme Court directs that “the amount of attorney’s fees to be awarded 

rests within the sound discretion of the trial judge and is reviewable on appeal only 

for abuse of discretion.” Hudson v. Hudson, 299 N.C. 465, 472, 263 S.E.2d 719, 724 

(1980) (emphasis in original).
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¶ 37 “If the court elects to award attorney’s fees, it must also enter findings to 

support the amount awarded.” Porterfield v. Goldkuhle, 137 N.C. App. 376, 378, 528 

S.E.2d 71, 73 (2000). These findings of fact must include “the time and labor 

expended, the skill required, the customary fee for like work, and the experience or 

ability of the attorney[] based on competent evidence.” Id. at 378, 528 S.E.2d at 73.

¶ 38 Here, although the trial court concluded that Mother’s $45,753.00 in attorney’s 

fees was reasonable, it ultimately awarded $14,548.50. The court included a finding 

of fact as to the time expended on the case, skill required, customary fee, and 

experience of the attorney:

54. As of December 15, 2017, Plaintiff had incurred 

litigation expenses in the amount of $45,753.00. Plaintiff’s 

attorney or members of her staff billed in excess of 231 

hours in this matter. Plaintiff’s attorney charges $275.00 

per hour for her in-court time and $250.00 per hour for inoffice time and her associates charge $225.00 per hour for 

in-court time and $200.00 per hour for in-office time. 

Plaintiff’s paralegals time is billed at $110.00 per hour. 

These rates and fees are reasonable for Plaintiff’s 

attorneys’ experience.

The trial court provided several findings in support of its award of attorney’s fees to 

Mother but did not provide a finding explaining its decision to award substantially 

less than Mother’s incurred litigation expenses. We conclude that without such an 

explanation, the order is insufficient for our review. Therefore, we vacate this portion 

of the 2018 Permanent Order and remand for additional findings.
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VACATED AND REMANDED.

Judges COLLINS and GRIFFIN concur.