Bobbitt v. Eizenga (Lawyers Weekly No. 15-16-0050, 19 pp.) (Sam Ervin IV, J.) Appealed from Davie County District Court (Mary Covington, J.) N.C. App. Unpub.
Holding: The trial court’s custody-related findings establish little more than that the parties’ child has resided with the defendant-mother since her birth, that defendant has been the child’s primary caretaker, and that defendant’s conduct has been, in certain respects, less than exemplary. These findings provide no real explanation for the trial court’s decision to award custody to defendant.
The trial court’s order awarding custody to defendant and denying visitation to plaintiff is vacated and remanded for further proceedings.
Two findings regarding visitation are directly contradictory. In one finding, the trial court said there was no evidence as to whether plaintiff’s prison’s visitation room was available to registered sex offenders; in the next finding, the court found that plaintiff’s parents bring his nieces – who are of similar age to the minor child, “Laura” – to visit him in prison. Accordingly, we may not rely on either finding in evaluating the trial court’s conclusions of law.
In addition, the trial court erroneously placed the burden of showing that visitation is in the child’s best interests upon plaintiff. Instead, the trial court should have simply reached a “best interests” determination based on the totality of the circumstances.
Furthermore, the trial court’s findings of fact do not support a determination that plaintiff has abandoned his constitutionally protected right to parent Laura.
We fail to see how the fact that plaintiff’s parents moved to intervene in order to facilitate plaintiff’s visits with his daughter signifies a decision on plaintiff’s part to forgo the right to exercise his parental responsibilities. In addition, by finding that “[t]he Plaintiff sends the minor child holiday cards, letters, notes, drawings, and other such materials” and acknowledging that plaintiff has requested the right to visit with the child, the trial court’s findings of fact demonstrate that plaintiff has not manifested a willful determination to forego all parental duties and to relinquish all parental claims to his child. As a result, the trial court’s conclusion that “[t]he Plaintiff has abandoned his constitutionally protected rights regarding the minor child,” is not supported by its findings of fact.
Vacated and remanded.s