Answer

I am sorry that you cannot accept the answer because it was not what you wanted to hear. Unfortunately, in North Carolina there are grandparent visitation laws and you could possibly go to court to seek such visitation rights, BUT, there are limitations under which grandparent visitation can be ordered by a court. Grandparents typically may only join an action between the parents, or even start an independent action, for the purpose of obtaining a court order for visitation with grandchildren.

The problem is that the grandparent may have to prove to the court that harm will occur to the grandchild in the absence of visitation. Since it is typically viewed that parents have a fundamental right to the care, custody and management of their child, only a compelling interest would be sufficient to allow a state (via its courts) to interfere with the parent's right to raise his/her child without such interference. This may be difficult to prove, since the grandparent has the obligation to prove that harm will result to the child's health and welfare should the court not order the parents to allow visitation with the grandparent. This is a difficult burden of proof to sustain.

As far as the law of libel and defamation in North Carolina: Under N.C. law, in considering whether an action is defamation, we look to the N.C. state constitution, to chapter 99 of the N.C. General Statutes, to Restatement (2d) of Torts because it is cited as authority in many N.C. appellate cases, and to the common law.

State Constitution

Article I, § 14, of the N.C. state constitution reads, "Freedom of speech and of the press are two of the great bulwarks of liberty and therefore shall never be restrained, but every person shall be held responsible for their abuse."

North Carolina General Statues (N.C.G.S.)

N.C. Gen. Stat. § 99 (1989) deals with defamation, but it does not address the issues that must be considered for McDougal's case.

Restatement (2d) of Torts (1976)

Restatement (2d) at § 558 lists the elements of a cause of action for defamation: "(a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication." N.C.'s Court of Appeals cited § 558 of Restatement (2d) in Renwick v. News and Observer Pub. Co., 63 N.C.App. 200, 304 S.E.2d 593 (1983).

Common Law

According to N.C.G.S., "All such parts of the common law as were heretofore in force and use within this State, ... not destructive of, or repugnant to, or inconsistent with ... the form of government therein established, ... are hereby declared to be in full force within this State." N.C. Gen. Stat. § 4-1 (1989). Therefore, N.C. courts rely on common law in defamation actions.

According to N.C. case law, defamation is either libel or slander. "In general, libel is written while slander is oral." Phillips v. Winston-Salem/Forsyth Co. Bd. of Educ., 117 N.C.App. 274, 450 S.E.2d 753, 756 (1994).

"In its most general and comprehensive sense, it may be said that any publication that is injurious to the reputation of another is a libel." Flake v. Greensboro News Co., 212 N.C. 780, 195 S.E. 55 (1938). Flake is the most complete analysis of the law of libel in N.C., and it is the most oft quoted: "Libels may be divided into three classes: (1) Publications which are obviously defamatory and which are termed libels per se; (2) publications which are susceptible of two reasonable interpretations, one of which is defamatory and the other is not; and (3) publications which are not obviously defamatory, but which become so when considered in connection with innuendo, colloquium, and explanatory circumstances. This type of libel is termed libel per quod."

Flake continues, "When an unauthorized publication is libelous per se, malice and damage are presumed from the fact of publication, and no proof is required as to any resulting injury.... In an action upon a publication coming within the second class, that is, a publication which is susceptible of two interpretations, one of which is defamatory, it is for the jury to determine under the circumstances whether the publication is defamatory and was so understood by those who saw it.... In publications which are libelous per quod, the innuendo and special damages must be alleged and proved." Since 1938, Flake has been cited repeatedly as authority in defamation cases: Phillips v. Winston-Salem/Forsyth Co. Bd. of Educ., 117 N.C. App. 274, 450 S.E.2d 753 (1994); Tyson v. L'Eggs Products, Inc., 83 N.C. App. 1, 351 S.E.2d 834 (1987); Roth v. Greensboro News Co., 217 N.C. 13, 6 S.E.2d 882 (1940).

The N.C. Court of Appeals defines libel per se, as "a publication which, when considered alone without explanatory circumstances: (1) charges that a person has committed an infamous crime; (2) charges a person with having an infectious disease; (3) tends to impeach a person in that person's trade or profession; or (4) otherwise tends to subject one to ridicule, contempt or disgrace." Phillips v. Winston-Salem/Forsyth Co. Bd. of Educ., 117 N.C. App. 274, 450 S.E.2d 753, 756 (1994), cited in Gaunt v. Pittaway, 353 N.C. 371, 547 S.E.2d 660 (2000); cited in Aycock v. Padgett, 134 N.C. App. 164, 516 S.E.2d 907.

The standard of fault for private person libel plaintiffs in North Carolina is negligence. Walters v. Sanford Herald, Inc., 31 N.C.App. 233, 228 S.E.2d 766 (1976): "[A] plaintiff in a civil action for libel, if he is a private citizen and not a public official or a public figure, can recover only if he alleges and proves fault, or at least negligence, on the part of the defendant publisher in publishing false and defamatory statements."

Elements of the Tort of Libel:

For a private citizen to prove libel, he must prove six things beyond a preponderance: (1) defamation; (2) falsity; (3) third-party recognition; (4) publication; (5) injury or damage; (6) fault. Defamation, falsity, third party recognition after publication, and injury are the standards as listed in Tyson v. L'Eggs Products, Inc., 84 N.C.App. 1, 351 S.E.2d 834 (1987). Fault is required because of Walters v. Sanford Herald, Inc., 31 N.C.App. 233, 228 S.E.2d 766 (1976).

A plaintiff could face these defenses: (1) the tolling of N.C.'s one-year statute of limitations on defamation; (2) the claim that defendant's statements were true; (3) the claim that the statements were fair reporting and thus a qualified privilege; (4) the claim that the statements were fair comment and criticism; (5) the claim that the statements were opinion and thus protected by the First Amendment of the federal constitution and by Article I, § 14, of N.C.'s constitution.

Cases of libel and/or defamation are not easily sustainable against family members in these types of situations, and even if you win, it may not remedy your situation with your grandchild.

I am sorry this may not be the answer you were looking for or wanted to hear, but it is the correct legal response.

Expert:	PaulMJD
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Answered:	6/3/2008

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