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Home / Opinion Digests / Domestic Relations / Domestic Relations  – Parent & Child – Custody & Visitation – Constitutional – Visitation Denial

Domestic Relations  – Parent & Child – Custody & Visitation – Constitutional – Visitation Denial

Before the trial court could completely deny visitation to the defendant-mother, the trial court was required to make findings – based on clear, cogent and convincing evidence – that the mother had forfeited her parental visitation rights.

We affirm the trial court’s order in part, vacate in part and remand.

The trial court granted full custody to the plaintiff-father and denied visitation to the defendant-mother. The order allowed plaintiff to permit visitation if he wished.

The trial court erred when it determined, without finding defendant had forfeited her parental visitation rights, that it was “not in the children’s best interests to have visitation with Defendant.” Furthermore, the trial court contradicted this conclusion, failed to follow In re Stancil, 10 N.C. App. 545, 179 S.E.2d 844 (1971), and delegated its judicial authority to the plaintiff-father when it allowed plaintiff to “permit custodial time between the children and Defendant within his sole discretion. . . .” The trial court cannot delegate its judicial authority to award or deny defendant’s visitation rights to a third party, like plaintiff.

The trial court is instructed on remand that electronic communication with a minor child may be used to supplement visitation with the child, but electronic communication may not be used as a substitute for custody or visitation.

The trial court violated defendant’s constitutionally protected interest as a parent by awarding sole custody to plaintiff without making a finding that defendant was unfit or had acted inconsistently with her constitutionally protected status as parent. The custody order purported to deny defendant all custody and visitation with her children, effectively terminating her parental rights.

Before denying a parent all custodial and visitation rights with his or her children, the trial court (1) must first make a written finding that the parent was unfit or had engaged in conduct inconsistent with his protected status as a parent, before applying the best interests of the child test and (2) make these findings based upon clear, cogent, and convincing evidence. Based upon the trial court’s failure to find defendant is either unfit or has acted inconsistently with her constitutionally protected status as a parent, we vacate the trial court’s conclusions of law and custody portions of its order. If on remand, the trial court purports to deny defendant all custody and visitation or contact with her children, the trial court must make the constitutionally required findings based on clear, cogent and convincing evidence.

This court’s application of the rule regarding each parent’s constitutionally protected individual relationship of custody or visitation with her child in this case and in Moore v. Moore, 160 N.C. App. 569, 584 S.E.2d 74 (2003), is fully consistent with binding precedents and with our Supreme Court’s holding in Owenby v. Young, 357 N.C. 142, 579 S.E.2d 264 (2003): “[T]he trial court may employ the ‘best interest of the child’ test only when the movant first shows, by clear and convincing evidence, that the natural parent has forfeited his or her constitutionally protected status.”

Affirmed in part, vacated in part, and remanded.

Concurrence

(Berger, J.) In the last few years, this court increasingly has overruled precedent on the ground that a case, although published and otherwise controlling, itself failed to follow an even earlier Court of Appeals or Supreme Court case.

One solution to this problem is for this court to write opinions following our precedent, notwithstanding that panel’s view of the weaknesses and errors within the current state of the law. In such an opinion, that panel could explain why the precedent is incorrect and make a direct request for the Supreme Court to use their power of discretionary review to announce the correct rule.

However, though our frequent intramural disputes over In re Civil Penalty, 324 N.C. 373, 379 S.E.2d 30 (1989), seem significant to us, the underlying legal issues often affect only minor or isolated issues within our jurisprudence. At a high court that hears only 70 or 80 cases on discretionary review each year, these simply won’t make the cut.

There is another option. This court now has the power to sit en banc.

Unfortunately, we have yet to sit en banc. Whatever the reasons we have declined to sit en banc may be, encouragement and accountability from the appellate bar would be beneficial. Of course, if the Supreme Court believes this court should resolve our conflicts en banc, it would be helpful for that court to say so.

Dissent

(Inman, J.) G.S. § 50-13.5 provides, “In any case in which an award of child custody is made in a district court, the trial judge, prior to denying a parent the right of reasonable visitation, shall make a written finding of fact that the parent being denied visitation rights is an unfit person to visit the child or that such visitation rights are not in the best interest of the child.”

The trial court found, “It is not in the children’s best interests to have visitation with Defendant.” Given this finding, pursuant to § 50-13.5(i), the trial court had the authority to suspend defendant’s visitation with the children without finding that defendant was a person unfit to visit them.

Nevertheless, the majority holds that defendant has a constitutional right to visitation with her children which has been violated by the trial court. In support of today’s holding, the majority relies on Moore, a decision disavowed by this court – and one directly contrary to controlling North Carolina Supreme Court precedent.

The majority’s holding today deviates from years of consistent precedent and confuses an otherwise settled area of law affecting families across our state.

Because the dispute is exclusively between the children’s parents, the trial court properly applied the “best interest of the child” test.

Moreover, contrary to the majority’s assertion, a loss of visitation or custody in a G.S. Chapter 50 proceeding between two parents is fundamentally different from the termination of parental rights under G.S. Chapter 7B.

Finally, if defendant has no right to visitation, the trial court’s delegation of discretion to plaintiff is mere surplusage, which does not require appellate review.

Routten v. Routten (Lawyers Weekly No. 011-352-18, 42 pp.) (John Tyson, J.) (Philip Berger, J., concurring) (Lucy Inman, J., concurring in part & dissenting in part) Appealed from Wake County District Court (Michael Denning, J.) Jill Schnabel Jackson for plaintiff; R. Daniel Gibson for defendant. N.C. App.

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