Grandparent Visitation/Custody Case Reviewed by North Carolina Court of Appeals

In the case of Powers v. Wagner, the North Carolina Court of Appeals considered a case where the trial court awarded primary custody of a minor child to the child’s grandparents. As with any grandparent visitation or grandparent custody case, the analysis is very fact specific and it is important to consider all of the relevant facts when considering such a case. Here, the mother and father had a child out of wedlock while they both lived in Florida. Mother and father did not marry. Mother eventually filed an action against father in Florida for paternity and child support. The paternity action determined that father was the biological father of the minor child. Mother also received an order for child support against Father. Importantly, no child custody determination was made in Florida.

Father took the minor child to North Carolina and the minor child lived with the paternal grandparents in North Carolina for an extended period of time. The paternal grandparents were granted temporary child custody of the minor child in September 2009. The paternal grandparents were granted permanent legal and physical custody of the minor child, with a structured visitation schedule for mother, in November 2009. Mother appealed and challenged two issues with respect to this family court opinion. First, mother contended that the trial court erred in finding that it had subject matter jurisdiction. Second, mother contended that the trial court failed to make adequate findings of fact supporting its conclusion that mother had acted contrary to her constitutionally protected parental rights.

While the trial court’s order did not explicitly track the language of North Carolina General Statute § 50A-102(7), the North Carolina Court of Appeals found that the trial court did make adequate findings of fact to support its conclusion that North Carolina had subject matter jurisdiction over this grandparent custody case. The North Carolina Court of Appeals noted that it is a better practice to for the family trial court to specifically outline its findings of fact pertaining to the “home state” of the minor child, it is not necessary.

The North Carolina Court of Appeals agreed with mother that the trial court did not make adequate findings of fact to support its conclusion that mother had acted contrary to her constitutionally protected parental rights. The North Carolina Court of Appeals considered the recent decisions in Bozeman (discussed herein at North Carolina Supreme Court Considering Same-Sex Adoption, Same Sex Adoption without Same Sex Marriage? and Same Sex – Second Parent Adoption Case Decided by North Carolina Supreme Court) and Price to illustrate the importance of the trial court analyzing the intent of the parent who is alleged to have acted inconsistently with their constitutionally protected parental rights. Specifically, the trial court is required to consider the parent’s intention with respect to the relationship between the minor child and the third-party (in this case the paternal grandparents) when the relationship begins and as it develops.

The North Carolina Court of Appeals noted inconsistent evidence relating to mother’s intention to relinquish custody of the minor child. The North Carolina Court of Appeals vacated the trial court’s order and remanded the case for further findings of fact pertaining to mother’s intentions with respect to the relationship between the minor child and the paternal grandparents.

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