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The Significance of ROSE v. POWELL (2023) in North Carolina Family Law: A Crucial Case for Asheville Divorce Lawyers

In the realm of family law, custody battles often bring forth some of the most emotionally charged and legally complex cases. One such case that has recently captured attention is ROSE v. POWELL (2023), decided by the Court of Appeals of North Carolina. This case, involving grandparents seeking secondary custody of their granddaughter, Aubrey Rose Chandler, underscores critical aspects of parental rights, grandparent visitation, and the interpretation of North Carolina’s custody laws. For those seeking the expertise of an Asheville divorce lawyer, understanding the nuances of this case is essential.

Factual and Procedural Background

The origins of ROSE v. POWELL are rooted in tragedy. On October 27, 2018, Jacob Chandler Rose, the son of the plaintiffs Kyna and Michael Rose, unexpectedly passed away. At the time of Jacob’s death, Jennifer Powell, the defendant, was pregnant with his child. Their daughter, Aubrey, was born on April 30, 2019, bringing a ray of hope amidst the sorrow.

Initially, the relationship between the Roses and Powell was amicable, marked by weekly dinners, shared outings, and mutual support, including financial assistance for Aubrey’s baptism and aid in filing a social security claim. However, in May 2021, Powell ceased all contact between Aubrey and the Roses, prompting the grandparents to seek legal recourse. On November 29, 2021, they filed an action seeking secondary custody of Aubrey. Powell responded with a motion to dismiss, and the Brunswick County District Court ruled in her favor, leading to the Roses’ appeal.

Key Legal Issues

The appeal in ROSE v. POWELL revolved around three main arguments presented by the plaintiffs:

Constitutionally-Protected Parental Status: The Roses contended that Powell acted inconsistently with her constitutionally-protected status as a parent by fostering a close relationship between them and Aubrey, then abruptly severing it.

Grandparent Visitation Rights: The plaintiffs argued that North Carolina General Statutes (N.C. Gen. Stat. §§ 50-13.1, 13.2(b1), 13.5(j), and 13.2(a)) should grant them visitation rights despite Powell’s intact family unit.

Best Interests of the Child: They asserted that continued visitation was in Aubrey’s best interests.

Court’s Analysis and Decision

Constitutionally-Protected Parental Status

The court upheld the constitutional presumption that a natural parent acts in the best interest of their child, as established in Price v. Howard. To challenge this presumption, a party must demonstrate that the parent is unfit, has abandoned the child, or has acted inconsistently with their parental status. The Roses argued that by integrating them into Aubrey’s life, Powell had created a family unit that included them. However, the court noted that unlike the circumstances in Boseman v. Jarrell, Powell had not formed a romantic relationship with the plaintiffs, nor had she represented them as parental figures. Consequently, the court found no inconsistency in Powell’s parental conduct.

Grandparent Visitation Rights

Under North Carolina law, grandparents can seek visitation rights in specific situations, typically involving disputes between parents or cases of abandonment, neglect, or unfitness. The statutes cited by the Roses were deemed inapplicable, as Powell’s family was considered intact, and no allegations of unfitness or neglect were made against her. The court emphasized the precedence set in McIntyre v. McIntyre, which limits grandparent visitation claims to cases where parental rights have been compromised.

Best Interests of the Child

While the best interest of the child is a crucial consideration in custody disputes between parents, applying this standard against a fit parent’s constitutional rights requires evidence of inconsistency in the parent’s conduct. Given the court’s finding that Powell’s actions did not breach her constitutionally-protected status, the best interests argument was not sufficient to override her parental rights.

Implications for Asheville Divorce Lawyers

For those navigating family law in Asheville, ROSE v. POWELL serves as a pivotal reference point. This case reaffirms the strength of constitutionally-protected parental rights in North Carolina and delineates the narrow circumstances under which non-parents, including grandparents, can challenge these rights. Asheville divorce lawyers must be diligent in assessing the viability of custody or visitation claims by non-parents, ensuring that there is a substantial basis for overcoming the presumption of parental fitness.


The decision in ROSE v. POWELL underscores the complexity of family law and the high threshold required to challenge a parent’s constitutionally-protected status. For grandparents and other non-parental figures seeking custody or visitation, this case illustrates the necessity of demonstrating clear evidence of parental unfitness or inconsistency. For Asheville divorce lawyers, staying abreast of such precedents is crucial in providing informed and effective legal counsel.

As the landscape of family law continues to evolve, ROSE v. POWELL (2023) remains a critical case for understanding the balance between parental rights and the interests of extended family members. For those in Asheville seeking guidance in similar situations, consulting with a knowledgeable divorce lawyer is essential to navigating these intricate legal waters.

Asheville Divorce Lawyer

Asheville Divorce Lawyer

If you have inquiries about prenuptial or postnuptial agreements, or if you need expert legal assistance in other areas of Family Law in Tampa, Florida or Asheville, North Carolina—including high asset divorces—please don’t hesitate to reach out to Damien McKinney of The McKinney Law Group for a detailed discussion of your case. Damien is available for contact via phone at 813-428-3400 or by email at [email protected].

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