After finding that visitation with Mother would not be in the children’s best interest, the trial court awarded sole physical custody to Father, denied visitation to Mother, and allowed Father to “permit custodial time between the children and [Mother] within his sole discretion.” Mother appealed.
The Court of Appeals held that before applying a best interest test to deny custodial and visitation rights to a parent, the trial court must (1) make a written finding of fact that that parent is “unfit or has engaged in conduct inconsistent with is protected status as parent” and (2) “make those findings based upon clear, cogent, and convincing evidence.” In reaching this determination, the Court of Appeals relied upon the holding in Moore v. Moore, 160 N.C. App. 569 (2003), in which the Court of Appeals held that “in a custody dispute between a child’s natural or adoptive parents, absent a finding that the parents are (i) unfit or (ii) have neglected the welfare of their children, the constitutionally protected paramount right of parents to custody, care and control of their children must prevail.” The Court in Moore based its decision upon the holding in Petersen v. Rogers, 337 N.C. 397 (1994). In her dissent, Judge Inman reasoned that the statute clearly allowed a denial of visitation based upon a best interest determination alone and that Moore had been wrongfully decided and disavowed, and was not controlling.
Based upon Judge Inman’s dissent, the case was appealed to the North Carolina Supreme Court. The Supreme Court agreed with Judge Inman’s dissent and clarified that the clear language of N.C. Gen. Stat. §50-13.5(i) allows a trial court to deny visitation to one parent upon a finding that that parent is unfit or that visitation is not in the best interest of the child. Moore was incorrectly decided because the presumption established in Petersen applies only in a case involving a parent against a non-parent. In a case involving two parents, there “exists no presumption regarding custody merely on the basis of either party’s parental status.”
https://ncbarblog.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.png00FamilyLawhttps://ncbarblog.com/wp-content/uploads/2018/06/Blog-Header-1-1030x530.pngFamilyLaw2020-07-02 09:42:182020-08-12 16:57:58Case Law Update: Supreme Court on Custody and Denial of Visitation