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    "judges": [
      "Judges LEWIS and MARTIN concur."
    ],
    "parties": [
      "CHARLES ALLEN MONTGOMERY and JANICE STEWART MONTGOMERY OVERBY, Plaintiffs-appellants v. KAREN CUMMINGS MONTGOMERY, Defendant-appellee"
    ],
    "opinions": [
      {
        "text": "WYNN, Judge.\nN.C. Gen. Stat. \u00a7 50-13.1(a) (1995) permits grandparents to seek visitation with their grandchildren when there is no ongoing custody proceeding and the children are not living in an \u201cintact family\u201d. McIntyre v. McIntyre, 341 N.C. 629, 461 S.E.2d 745 (1995). In this case, paternal grandparents appeal to us to hold that since their son is deceased and had separated from his wife before his death, the child of that couple who continues to live with her mother does not live in an \u201cintact family\u201d. Following this Court\u2019s holding in Fisher v. Gaydon, 124 N.C. App. 442, 477 S.E.2d 251 (1996), we find that the child lives in an \u201cintact family\u201d and therefore, we uphold the trial court\u2019s dismissal of the grandparents\u2019 visitation action.\nOn 5 April 1996, a daughter was born to the marriage of Karen Cummings Montgomery and Michael Allen Montgomery. Approximately two years later, on 20 June 1998, the child\u2019s father was killed in a highway accident. At the time of his death, the child\u2019s parents were living separate and apart. Thereafter, the minor child resided with her mother.\nConcerned that they were being denied, without cause, visitation with the minor child, the natural paternal grandparents of the child brought the present action. But the trial court dismissed that action under Rule 12(b)(6) for failure to state a claim upon which relief could be granted. The paternal grandparents now appeal to this Court.\nAt common law, grandparents had no standing to sue for visitation of their grandchildren. See Shackleford v. Casey, 268 N.C. 349, 352, 150 S.E.2d 513, 515 (1966) (stating that as \u201ca general rule at common law and under our decisions, parents have the legal right to the custody of their infant children. This natural and substantive right the courts may not lightly disregard.\u201d); see also Acker v. Barnes, 33 N.C. App. 750, 752, 236 S.E.2d 715, 716 (1977) (superseded by N.C. Gen. Stat. \u00a7 50-13.1(a)) (stating that so \u201clong as parents retain custody of their minor children, they retain the prerogative to determine with whom their children shall associate\u201d); Brotheron v. Boothe, 250 S.E.2d 36 (W.Va. 1978) (superseded by W.Va.Code, 48-2B-1); Lo Presti v. Lo Presti, 355 N.E.2d 372 (N.Y. 1976); Pier v. Bolles, 596 N.W.2d 1, 4 (Neb. 1999) (stating that at under the common law, \u201cgrandparents lacked any legal right to visitation and communication with their grandchildren if such visitation was forbidden by the parents\u201d); In re Welfare of R.A.N., 435 N.W.2d 71 (Minn. App. 1989)\nIn modern times, however, states have recognized such a right under limited circumstances. See e.g., W.VA. Code \u00a7 48-2B-1 et seq. (1998); N.Y. DRL \u00a7 72 (1996); NEB. Rev. Stat. \u00a7\u00a7 43-1801, 43-1802, 43-1803 (1998); IND. Code \u00a7 31-17-5-1 et seq. (1997); MINN. Stat. \u00a7 257.022, subd. 2a (1998). North Carolina joined the movement towards recognizing the right of grandparents to seek visitation in limited circumstances by enacting N.C. Gen. Stat. \u00a7\u00a7 50-13.2(b1), 50-13.2A, 50-13.5(j) and 50-13.1(a). See McIntyre, 341 N.C. at 634, 461 S.E.2d at 749.\nFirst, N.C.G.S. \u00a7 50-13.2(bl) states that \u201c[a]n 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\u201d. N.C.G.S. \u00a7 50-13.2(bl) (1995) (emphasis added); see also Penland v. Harris, 135 N.C. App. 359, 361, 520 S.E.2d 105, 106 (1999); Fisher, 124 N.C. App. at 444, 477 S.E.2d at 252.\nSecond, N.C.G.S. \u00a7 50-13.2A, entitles a grandparent to seek visitation when the child is \u201cadopted by a stepparent or a relative of the child where a substantial relationship exists between the grandparent and the child.\u201d N.C.G.S. \u00a7 50-13.2A (1995) (emphasis added).\nThird, N.C.G.S. \u00a7 50-13.5Q) entitles a grandparent to seek visitation \u201c[i]n 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\u201d. N.C.G.S. \u00a7 50-13.5Q) (1995) (emphasis added); see also Penland, 135 N.C. App. at 361, 520 S.E.2d at 106; Fisher, 124 N.C. App. at 444, 477 S.E.2d at 252.\nFinally, N.C.G.S. \u00a7 50-13.1(a) entitles a grandparent to \u201cinstitute an action or proceeding for custody\u201d of their grandchild. N.C.G.S. \u00a7 50-13.1(a). However, as articulated by our Supreme Court in McIntyre, 341 N.C. at 635, 461 S.E.2d at 750, grandparents are not entitled to seek visitation under N.C.G.S. \u00a7 50-13.1(a) when there is no ongoing custody proceeding and the grandchild\u2019s family is intact.\nThe paternal grandparents in this case acknowledge that they have no standing under either N.C.G.S. \u00a7 50-13.2(bl) or N.C.G.S. \u00a7 50-13.5Q) because there has been no custody action concerning their grandchild. Moreover, although the paternal grandparents\u2019 complaint alleged that they were entitled to visitation rights with their granddaughter under N.C.G.S \u00a7 50-13.2, it is clear that N.C.G.S. \u00a7 50-13.2A does not apply because the grandchild has not been \u201cadopted by a stepparent or a relative of the child\u201d. Consequently, the grandparents only argue in this appeal that they have standing to seek visitation under N.C.G.S. \u00a7 50-13.1(a). We, therefore, limit our discussion to that statute.\nIn Fisher, this Court noted that \u201cunder the broad grant of section 50-13.1(a), grandparents have standing to seek visitation with their grandchildren when those children are not living in a McIntyre \u2018intact family\u2019.\u201d See Fisher, 124 N.C. App. at 444, 477 S.E.2d at 253. When the grandparents in this cased filed their action, their grandchild resided with her mother. The grandparents contend that since their son \u2014 the child\u2019s father \u2014 is deceased and the parents were separated at the time of his death, the child was not living in an \u201cintact family.\u201d We must disagree.\nIn Fisher, this Court held that an \u201cintact family\u201d is not limited to situations where both natural parents are living with their children. See id. at 445, 477 S.E.2d at 253. In fact, \u201ca single parent living with his or her child is an \u2018intact family\u2019 within the meaning of McIntyre.\u201d Id. Fisher controls in the case sub judice-, accordingly, we are bound to hold that the grandchild who is living with her natural mother is living in an \u201cintact family.\u201d Since the child lived in an \u201cintact family\u201d at the time of this action, the grandparents may not seek visitation rights under N.C.G.S. \u2022\u00a7 50-13.1(a). We, therefore, uphold the trial court\u2019s dismissal of the grandparents\u2019 action for visitation.\nAffirmed.\nJudges LEWIS and MARTIN concur.",
        "type": "majority",
        "author": "WYNN, Judge."
      }
    ],
    "attorneys": [
      "Peebles & Schramm, by John J. Schramm, Jr. and Erin L. Williams for the plaintiffs-appellants.",
      "K. Clay Dawson, P.A., by Kenneth Clayton Dawson for the defendant-appellee."
    ],
    "corrections": "",
    "head_matter": "CHARLES ALLEN MONTGOMERY and JANICE STEWART MONTGOMERY OVERBY, Plaintiffs-appellants v. KAREN CUMMINGS MONTGOMERY, Defendant-appellee\nNo. COA99-315\n(Filed 18 January 2000)\nChild Custody, Support, and Visitation\u2014 visitation \u2014 grandparents \u2014 denied\u2014intact family\nEven though plaintiff-paternal grandparents sought visitation rights of their grandchild under N.C.G.S. \u00a7 50-13.1(a) based on the theory that the child was not living in an \u201cintact family\u201d since the child\u2019s father is deceased and the parents were separated at the time of his death, the trial court did not err in dismissing this action because: (1) an \u201cintact family\u201d is not limited to situations where both natural parents are living with their children; (2) a single parent living with his or her child is an \u201cintact family\u201d; and (3) a grandchild who is living with her natural mother is living in an \u201cintact family.\u201d\nAppeal by plaintiffs from judgment entered 28 January 1999 by Judge William B. Reingold in Forsyth County District Court. Heard in the Court of Appeals 8 December 1999.\nPeebles & Schramm, by John J. Schramm, Jr. and Erin L. Williams for the plaintiffs-appellants.\nK. Clay Dawson, P.A., by Kenneth Clayton Dawson for the defendant-appellee."
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