Do you remember when China started the One Child Policy? While watching a documentary on the unintended tragic consequences of this policy, I started to wonder what may occur if the USA started a similar policy.

Imagine the Federal Bureau for Parental Licensing (FBPL). What if a person had to apply for a license from the FBPL? What kind of requirements and testing would be implemented? Would you be required to be physically and mentally healthy? Maybe an ink blot test? The MMPI-2 administered? Genetic testing? Would marriage or long-term committed relationship be a prerequisite?

Well in the Paynich v. Vestal reported case out of the North Carolina Court of Appeals on January 7, 2020, I bet the court was wishing there was a FBPL in place. The basic facts of the case were that Husband and Wife were married for fifteen (15) years and separated almost immediately after their daughter was born. To put it simply, mom appears to have mental health issues and her behavior was harmful to the child. The court designated the matter as a high conflict custody case.

Trial court Judge Andrea F. Dray from Buncombe County granted Dad custody and Mom was ordered to have supervised visitation in 2015. In 2016 the parties went back to court and Mom was granted some unsupervised visitation. Back to court again in 2018 and Dad was again granted custody; however, mom received a schedule that contained both supervised and unsupervised visitation with the minor child. Additionally the court restricted Mom’s rights to have access to the minor child’s school, medical, and counseling records. Mom appealed.

So how can the court order both supervised and unsupervised visitation? Can a parent be fit for some unsupervised visitation and some supervised visitation? How does that even work?

The appellate court ruled that the court may deprive a custodial parent of visitation if the parent is found to be unfit or if visitation rights are not in the best interests of the minor child. Supervised visitation itself is a severe restriction that effectively denies or deprives a parent of reasonable visitation, thus requiring the same findings.

First, what was mom doing that made supervision necessary anyway? The court found that the minor child was more aggressive and defiant after visits. She soiled her pants more often and became aggressive in play. Mom vandalized Dad’s truck during an exchange, caused a scene in the child’s classroom with the child there, and Mom was upset in the school pick up line in the presence of the minor child. Mom also hid the minor child from Dad during an exchange, causing him to go rushing between two locations seeking the child. Through all of this, Mom could not see how her behavior harmed the minor child. For these reasons, the court affirmed the trial court in ordering the structured visitation schedule which included both supervised and unsupervised time.

Practice Tip: Supervised visitation is a deprivation of custodial rights and requires findings that a parent is unfit or that visitation rights are not in the best interests of the minor child.

The appellate court reversed the trial court on denying Mom the right to access the minor child’s school, medical, and counseling records. The court differentiated this case from the Huml v. Huml (826 S.E. 2d 532, (NC Ct App 2019)) matter, where the father was denied access to the same records. In Huml, the father “made third-party professionals trying to help this family sufficiently concerned about their own safety.” In the case at hand, Mom was found to have behavior at the child’s school that was disruptive. The same behavior caused the minor child increased and unnecessary stress, disrupted her education, made the child’s teacher uncomfortable, and resulted in Mom being banned from school.

Nevertheless, these findings were not sufficient to bar Mom from her access to the minor child’s records as evidence did not exist which detailed that third parties interacting with her would be fearful of their own safety. It should also be noted that findings existed to show the parent coordinator in the case testified on how she told the “school authorities that she felt that the school would be safe and that the Defendant [Mom] did not post a threat to the safety of the other students.”

Practice Tip: For a parent to be deprived the right to access the child’s school, medical, or counseling records, they must pose a threat of harm or make third-party professionals concerned about their own safety.

March 18, 2020/by FamilyLaw