Domestic Relations – Modification of Child Custody – Best Interests – Visitation – Delegation of Judicial Authority

We agreed with the trial court’s finding that visitation with plaintiff mother was not in the children’s best interests and any delegation of discretion to the children to determine whether to have visitation with plaintiff was mere surplusage.

We affirmed.

Plaintiff appealed from the trial court’s order granting defendant permanent primary legal and physical custody of their minor children and denying her visitation.

Plaintiff argued that the court denied her visitation without making the requisite findings of fact pursuant to N.C. Gen. Stat. §50-13.5(i), and that the court improperly delegated its judicial authority by allowing the children discretion to determine whether to have visitation with her. As the court made the requisite findings of fact prior to denying plaintiff visitation, and the findings of fact and conclusions of law are supported by the unchallenged findings of fact, the court did not abuse its discretion by denying plaintiff visitation.

Plaintiff also argued that the court “improperly delegated its judicial authority over visitation by allowing the minor children the sole discretion to determine whether they would have any contact with [Plaintiff].” However, the court denied plaintiff visitation after finding that visitation was not in the children’s best interests. In light of the court’s authority to deny visitation pursuant to N.C. Gen. Stat. §50-13.5(i), any delegation of discretion to the children to determine whether to have visitation with plaintiff is “mere surplusage[.]” Routten v. Routten, 374 N.C. 571, 579, 843 S.E.2d 154, 159 (2020). As the court denied plaintiff visitation pursuant to N.C. Gen. Stat. §50-13.5(i), it did not improperly delegate its judicial authority by allowing the children discretion to determine whether to have visitation with plaintiff.

Affirmed.

Carballo v. Carballo (Lawyers’ Weekly No. 011-123-24, 11 pp.) (Allegra Collins, J.) Appealed from Mecklenburg County District Court (Tracy H. Hewett, J.) Robinson & Lawing, LLP, by Christopher M. Watford, for plaintiff-appellant; Dozier Miller Law Group, by Allison P. Holstein, Kelly A. Nash, and James R. Pennacchia, for defendant-appellee. North Carolina Court of Appeals