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Domestic Relations – Constitutional — Parent & Child – Custody – Paternal Grandparents – Insufficient Findings – Subject Matter Jurisdiction

Domestic Relations – Constitutional — Parent & Child – Custody – Paternal Grandparents – Insufficient Findings – Subject Matter Jurisdiction

Powers v. Wagner (Lawyers Weekly No. 11-07-0720, 19 pp.) (Martha A. Geer, J.) Appealed from Johnston County District Court. (Jimmy Love Jr., J.) N.C. App. Click here for the full-text opinion.

Holding: Although the defendant-mother left her son with his paternal grandparents for two years, the trial court failed to make findings as to whether the mother intended for the arrangement to be temporary or permanent. The trial court should not have proceeded to the issue of the child’s best interests before ruling on the issue of the mother’s intentions.

We vacate the order granting custody to the grandparents and remand for further proceedings.


The trial court found that on Aug. 15, 2007, defendants’ son “Scott” “came to North Carolina to stay with” plaintiffs, Scott’s paternal grandparents, and the defendant-mother never took any legal action after that date to regain custody of Scott. Plaintiffs placed Scott in daycare, took him to his doctor’s appointments, and paid for his medical expenses.

These findings, which are unchallenged on appeal, are sufficient to establish that Scott resided in North Carolina with plaintiffs, who were acting as parents, for at least six months prior to the filing of this custody action. Therefore, North Carolina was Scott’s home state for purposes of this proceeding, and the trial court had subject matter jurisdiction even though the trial court’s findings did not expressly track the language in G.S. ¤ 50A-102(7).

A Florida court entered a paternity and support order on April 3, 2007, concluding that plaintiffs’ son, defendant Brannon Wagner, was Scott’s biological father and ordering Wagner to pay child support. Since the Florida order was not a child custody determination, the N.C. trial court properly exercised jurisdiction over this action because North Carolina is Scott’s “home state” and no other jurisdiction had made an initial determination that deprived N.C. courts of subject matter jurisdiction over this custody matter.


If a parent cedes paramount decision-making authority, then, so long as he or she creates no expectation that the arrangement is for only a temporary period, that parent has acted inconsistently with his or her paramount parental status.

In deciding whether a parent has acted inconsistently with her constitutionally-protected right to parent, the trial court must consider the legal parent’s intentions regarding the relationship between his or her child and the third party during the time that relationship was being formed and perpetuated.

The fact that a third party provides caretaking and financial support, engages in parent-like duties and responsibilities, and has a substantial bond with a  child does not necessarily meet the requirements of  Price v. Howard, 346 N.C. 68, 484 S.E.2d 528 (1997), and  Mason v. Dwinnell, 190 N.C. App. 209, 660 S.E.2d 58 (2008).

Here, the trial court determined that defendants “acted in a manner inconsistent with their constitutionally protected status as a parent in that they voluntarily relinquished custody of the minor child for a minimum of fifteen (15) months to the Plaintiffs.” Further, the trial court found that “since August 15, 2007, the Defendants have voluntarily allowed the Plaintiffs to function as parents in the day to day life of the minor child. That during said period, Defendants were able to care and provide for the minor child and chose not to do so.” Finally, the court found that “since August 15, 2007, the Defendants have fostered the forging of a parental bond between the Plaintiffs and the minor child.”

However, the finding that the mother voluntarily relinquished custody of Scott to plaintiffs does not address the requirement in Boseman v. Jarrell, 364 N.C.  537, 704 S.E.2d 494 (2010), that the trial court determine whether “the relinquishment was intended to be only temporary….” Further, the findings that the mother allowed plaintiffs to function on a day-to-day basis as parents and fostered the forging of a parental bond focuses only on the mother’s conduct without also considering her intentions at the time she allowed Scott to go to plaintiffs.

Without the necessary findings, there can be no determination that the mother acted inconsistently with her constitutional right to parent. The trial court, after concluding that the mother acted inconsistently with that right, then applied the “best interest of the child” standard and concluded that it was in Scott’s best interest for plaintiffs to have permanent custody of him. This determination was premature.

We vacate the order and remand for further findings of fact consistent with Boseman, Price, and Estroff v. Chatterjee, 190 N.C. App. 61, 660 S.E.2d 73 (2008). Only if the trial court, after applying those decisions, again determines that the mother acted inconsistently with her constitutional right to parent may the trial court apply the best interest standard in deciding who should have custody of Scott.

Vacated and remanded.


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