NC Case Law: Child Custody and Visitation Rights

  1. Family Law
  2. Child Custody
  3. NC Case Law: Child Custody and Visitation Rights

One of the most difficult kinds of case for a family law practitioner is the custody case. Perhaps this is due in part to the lack of law to guide the attorney through the process. Intentionally, the appellate courts have given the trial court wide discretion in the way these trials are held, and the law required. Importantly, the year that can pass during an appeal leaves the parties in limbo so long as to make the entire procedure too costly.

That being said, there are important parts of law that custody trials that impact the practice from the very moment a client comes into our office. I have listed here, in the true nature of the A to Z format, a list of the most important cases in the custody arena.

Rights of Third Parties

Peterson v. Rogers, 337 N.C. 397, 445 S.E.2d 901 (1994)

  • Between a non-parent and a parent, the natural parent has a paramount constitutional right absent a showing of unfitness or neglect.
  • Remember to use this case any time that custody is at issue (including dealing with the Department of Social Service, and law enforcement). The language in this case is very bold, clarifying a constitutional right that cannot easily be taken away.

Price v. Howard, 346 N.C. 68, 484 S.E.2d 528 (1997)

  • If a biological parent’s conduct has been inconsistent with their constitutionally protected status, then the application of the “best interests of the child standard” does not offend due process. While this standard is not strictly defined, it does not have to rise to the level that would warrant a termination of parental rights.
  • If a biological parent’s constitutionally protected status can be lost by acting inconsistent with the constitutionally protected status of a natural parent.

Ellison v. Ramos, 130 N.C. App. 389, 502 S.E. 2d 891

  • Even leaving a child in the custody of other, in particular in a place where harm can come to the child can be action inconsistent with the constitutionally protected status as a parent.

 Price v. Breedlove, 138 N.C. App. 149 (2000)

  • When a father and child are the remaining living parts of a family, it is a constitutionally protected in-tact family.
  • The Trial Court retains jurisdiction of the issue of custody until the death of one of the parties or the emancipation of the youngest child.

 Change of Circumstances

 Pulliam v. Smith, 348 N.C. 616, 501 S.E.2d 898 (1998)

  • The Court here held that a change of circumstances need not have an adverse effect on a child; a beneficial change will also support a modification.
  • The Court must weigh any change of circumstance and make findings as to each.

 Metz v. Metz, 138 N.C. App. 538 (2000)

  • The change of circumstances justifying a modification does not have to be a negative one, but can be a positive change.
  • When a father has been through rehabilitation to a point that he can now make a positive change on the child, the modification of custody to him is justified.

 Shipman v. Shipman, 357 N.C. 471 (2003)

The North Carolina Supreme Court clarified the two-step approach to modification (first finding a substantial change, then finding the best interest of the child for placement). The Supreme Court backed the concept of Mets and Pulliam in showing a favorable change of circumstances can be enough to justify a modification of the previous custody order.

 Jackson v. Jackson (Sauls), 192 N.C.App. 455, (2008)

When a trial court modifies custody or visitation because of violations of a visitation order, it must be careful not to confuse the purposes of modification and contempt. The court modifies custody or visitation because substantial changes in circumstances have made a different disposition in the best interest of the child. A custodian should not violate the visitation order, but if he or she does, then ordinarily the proper response is a finding of contempt, not modification.

Modification is generally not done to punish a parent, it is done for the best interest of the child.

Warner v. Warner, 189 N.C. App. 445 (2008)

Despite the feeling that many attorneys now have that there is no need to show a “nexus” to the child, this case clarifies that there continues to be a requirement that the substantial change of circumstances affect the child.

Where a mother failed to offer evidence regarding how her substantial change of circumstances affected the welfare of the minor child, the trial court properly denied her motion to modify custody.

Lang v. Lang, 678 S.E.2d 395 (2009)

But the counter to the Warner case is the Lang case from the next year, that clarified that “self-evident” impact on the child is enough to modify. A substantial change of circumstances are appropriately found when the effects on the child were “self-evident”. In this case, the issue was over diagnosis of the child as attention deficit disorder.

NC Case Law: Standard of Order

Swicegood v. Swicegood, 270 N.C. 278, 154 S.E.2d 324 (1967)

  • All orders for custody need to have clearly stated facts to justify the best interest of the minor child.
  • This case can give you a chance at a “second bite” at the apple. Often I have found attorneys being asked to draft an order, which often is poorly done. Make sure the facts are specifically found by the court, it is important for this case, and the later modification case that may later ensue.

 NC Case Law: Temporary or Permanent

LaValley v. LaValley, 151 N.C. App. 290, 564 S.E.2d 913 (2002)

  • If a child custody order is final, a party moving for modification must first show a substantial change in circumstances.
  • If a child custody order is temporary, the trial court uses a simply best interest test.
  • An order can be “converted” to a permanent order when neither party requests a calendaring within a reasonable time.

NC Case Law : Relocation

Ramirez-Barker v. Barker, 107 N.C.App. 71, 418 S.E.2d 675 (1992)

Factors the court may properly consider for determination of best interest of the child in a relocation case:

  • The advantage of the relocation in terms of its capacity to improve the life of the child;
  • The motives of the custodial parent in seeking the move;
  • The likelihood that the custodial parent will comply with the visitation orders when he or she is no longer subject to the jurisdiction of North Carolina;
  • The integrity of the non-custodial parent in resisting the relocation;
  • The likelihood a realistic visitation schedule can be arranged which will preserve and foster the parental relationship with the noncustodial parent.

NC Case Law: Wishes of the Child

Hinkle v. Hinkle, 266 N.C 189, 146 S.E.2d 73 (1966)

The expressed wish of a child’s discretion is, however, never controlling upon the court, since the court must yield in all cases to what it considers to be for the child’s best interests, regardless of the child’s personal preference. The wishes of a child of sufficient age are entitled to considerable weight when the contest is between parents, but it is not controlling.

NC Case Law : Grandparent Rights

McIntyre v. McIntyre, 341 N.C. 629, 461 S.E.2d 745 (1995)

Generally, custody statutes do not confer a right for a grandparent to sue for custody (see Peterson above). A grandparent cannot sue for visitation unless the family is not intact.

Fisher v. Gaydon, 134 N.C. App. 442 (1999)

A mother living with her children is an intact family, so grandparents have no standing for visitation.

Perdue v. Fuqua, 195 N.C. App. 583 (2009)

In order for a grandparent to initiate a proceeding for visitation, there must be an ongoing custody proceeding and the child’s family must not be an intact family. In order for a grandparent to initiate a proceeding for custody, there must be an allegation of unfitness of a parent due to neglect or abandonment. If there is a prior order of custody, a grandparent must show that there has been a substantial change of circumstances that now makes the parents unfit.

Many of these cases are adopted and found at “Critical Family Law Cases“, Manging Editors Kimberly W. Bryan & Nancy L. Grace, North Carolina Foundation Bar Association, 2011.

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