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Domestic Relations – Child Custody – Guardianship – District Court Action

Corbett v. Lynch (Lawyers Weekly No. 011-412-16, 8 pp.) (Chris Dillon, J.) Appealed from Davidson County District Court (April Wood, J.) N.C. App.

Holding: Once the defendant-aunt was named as the orphaned minor children’s general guardian, the district court properly dismissed the plaintiff-stepmother’s custody case as moot, since general guardianship includes custody of the ward.

We affirm the district court’s order dismissing the custody case.

An award of the general guardianship of any minor who does not have a natural guardian entitles the guardian to custody of the child. G.S. § 35A-1241(a)(1).

Our statutes provide for an override of a G.S. Chapter 50 custody determination by the appointment of a general guardian or guardian of the person: Chapter 35A allows for an eligible party to obtain guardianship of a minor child with no living parents even if the issue of the child’s custody has already been resolved by the district court in a Chapter 50 custody proceeding.

Here, the clerk of superior court properly exercised jurisdiction under Chapter 35A to consider the application for guardianship of “Max” and “Allison,” as the children had no natural guardian. The clerk’s jurisdiction was not divested by an ex parte temporary custody order that had already been entered by the district court because Chapter 35A contemplates the clerk giving due consideration of custody awards entered by other courts.

Accordingly, the clerk had jurisdiction to appoint the aunt and her husband as general guardians for Max and Allison, an incident of which is physical custody of the children. Thus, any modification of the clerk’s guardianship arrangement, including modification of custody, would require filing a motion with the clerk under Chapter 35A rather than filing an action for custody action in district court under Chapter 50.

Further, once the clerk of superior court entered the order awarding general guardianship of Max and Allison to the aunt and her husband, the Chapter 50 custody action became moot. A final determination by the district court in the stepmother’s Chapter 50 custody action would have no practical effect on the controversy regarding custody of the minor children, as custody was decided as part of the guardianship proceeding.

Accordingly, the district court properly dismissed the stepmother’s Chapter 50 custody action.


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