1. Appeal and Error--appealability--interlocutory order--child custody
Although the trial court's child custody order places temporary custody of the minor child
with plaintiff maternal grandparents, it is a final order and is not interlocutory because it places
permanent custody of the minor child with defendant father and sets forth no reconvening date.
2. Child Support, Custody, and Visitation--custody--grandparents--best interests of
child
The trial court erred in a child custody case by granting permanent custody of the minor
child to defendant father instead of to plaintiff maternal grandparents, because: (1) all of the
evidence tended to show that defendant had little or no contact with and demonstrated no interest
in the minor child until the death of the child's mother, which occurred little more than a month
before the custody hearing; (2) the trial court found that defendant had engaged in conduct
inconsistent with his constitutionally protected status as a parent and that the best interests of the
child standard applied; (3) the trial court's finding that it was in the minor child's best interests
for permanent custody to be placed with defendant was premature, speculative, and unsupported
by the evidence when the minor child had no relationship with defendant; and (4) plaintiffs
assisted in the care and nurturing of the minor child since his birth, and the minor child resided
with plaintiffs on several occasions both with and without his mother.
Darrell B. Cayton, Jr. for plaintiff appellants.
W. Michael Spivey for defendant appellee.
TIMMONS-GOODSON, Judge.
Paul and Patty Sue McRoy (“plaintiffs”) appeal from an order
of the trial court granting temporary custody of Brandon Paul
Hodges (“Brandon”) to plaintiffs, and granting permanent custody to
Marion Eugene Hodges, Jr. (“defendant”). For the reasons stated
herein, we reverse the order of the trial court. The pertinent facts of the instant appeal are as follows:
Plaintiffs are the maternal grandparents of Brandon, who was born
30 May 1994. Brandon's mother, Robin Hodges (“Hodges”), died on or
about 8 February 2002. From his birth until the time of his
mother's death, Brandon resided with his mother. Brandon also
occasionally resided with plaintiffs. Defendant, Brandon's natural
father, had extremely limited contact with Brandon prior to
Hodges' death. After Hodges died, defendant expressed interest in
visiting with and eventually establishing custody of Brandon. On
13 February 2002, plaintiffs filed a complaint requesting temporary
and permanent custody of Brandon in Beaufort County District Court.
The matter came before the trial court on 2 July 2002, at which
time the trial court made the following pertinent findings of fact:
10. Plaintiff Paul McRoy is currently
employed as a painter. Plaintiff Patty Sue
McRoy, 52 years old, is currently a homemaker.
They have been married for 22 years.
11. Defendant is currently employed with
Highway Mobile Home Movers and earns
approximately $23,000 per year. Defendant's
wife, Debra Hodges, is presently disabled from
an automobile accident, and is not working
outside the home. Defendant and his wife have
been married approximately one year.
Defendant has another son, Ridge Allen Hodges,
9, who lives with his mother, Lisa Shepard
Martin, in Washington, North Carolina.
Defendant visits with this child, although not
on any set schedule.
12. Defendant testified he and Robin Hodges
were never married, but lived together for
approximately six months in 1993. When the
minor child, Brandon Paul Hodges, was born on
May 30, 1994, defendant and Robin Hodges were
not living together. At that time, both
defendant and Robin Hodges were living
unstable lives, and both experienced problems
with alcohol and drugs. The minor child was
born prematurely, but the defendant did notvisit the child in the hospital. Defendant
first saw the child when he was approximately
5-6 months old. Defendant testified he
attempted to visit or make contact with the
child during infancy, but there was animosity
between defendant, Robin Hodges, and the
plaintiffs, and therefore, no visits occurred.
13. Defendant admitted that since Brandon
Paul Hodges was an infant until February,
2002, he had little or no contact with said
child. During this time, defendant never sent
any Christmas or birthday cards/presents,
visited the child at school or sporting
events, or otherwise made any real efforts to
visit with the minor child. Also during this
time, defendant consulted with a lawyer
regarding the custody/visitation of said
child, but was unable to afford the fees to
hire a lawyer. During this time, defendant's
sister, Lynn Hodges, loaned defendant money,
and accumulated more than $3000.00 in
educational savings for Ridge Allen Hodges,
defendant's other son. However, defendant
never sought to borrow money from his sister
or other family member during this time in
order to hire an attorney. Since the death of
Robin Hodges, defendant desires to accept
responsibility for the said minor child, and
wants custody of same.
14. In 1996, defendant checked himself into
Tideland Mental Health Center for drug and
alcohol abuse. He completed a 28 day
rehabilitation program, and then was
transferred to a halfway house for six months
in Rocky Mount. Defendant has been
alcohol/drug free since that time. Defendant
moved away from Beaufort County in an effort
to clean himself up.
15. Defendant further testified that in 1996,
after completing rehabilitation, he resided in
Rocky Mount, North Carolina. Robin Hodges
traveled to Rocky Mount with the said minor
child to visit defendant. At that time, Robin
Hodges asked defendant to reconcile with her,
and when the defendant refused, Robin Hodges
told defendant he would never see the said
minor child again.
16. Defendant had opportunities to be in the
presence of Brandon Paul Hodges whiledefendant was attending soccer/baseball games
of his other son, Ridge. However, during
these times, defendant failed to introduce
himself or otherwise make contact with Brandon
prior to February, 2002.
17. From February 28, 2002 until the date of
this hearing, defendant has exercised
visitation, by consent and pursuant to a
graduated schedule, with the minor child.
These visitations occurred in Beaufort County,
at which time defendant attended some baseball
practices, took the child to a
playground/movie, or spent time with the child
at the home of Pat Hodges, defendant's mother.
As of this hearing, the minor child had not
spent any overnights with the defendant.
18. Defendant has consistently paid child
support for the benefit of Brandon Paul
Hodges, except for periods when he was out of
work/between jobs. On several occasions,
defendant's tax refunds have been intercepted
for child support purposes.
19. Plaintiffs, particularly Patty Sue McRoy,
assisted Robin Hodges in the care and
nurturing of the said minor child since his
birth. On several occasions Robin Hodges and
the minor child lived with the plaintiffs. In
addition, the minor child lived with the
plaintiffs during the times that Robin Hodges
was admitted to some type of inpatient
treatment center or hospital for substance
abuse or manic depression. Even when Robin
Hodges and the minor child were not living
with plaintiffs, Patty Sue McRoy saw Robin and
the child almost daily.
. . . .
21. Since February 8, 2002, plaintiffs
arranged for the minor child to meet with a
counselor at Tideland Mental Health Center
concerning the death of the child's mother.
As of this hearing, the child had met with a
counselor on approximately two occasions.
22. Elizabeth Beacham testified that as
manager of Glenview Apartments from
approximately 1995-1999, she had occasion to
see Robin Hodges, Patty Sue McRoy and the
minor child frequently. When the child wasonly a few years old, she heard defendant
state he was the father of said child but
wanted nothing to do with him. . . .
23. Lisa Shepard Martin is the mother of
Ridge Allen Hodges, the other son by
defendant. Defendant has paid child support
to her for the benefit of said child, and has
visited sporadically with the said child,
although not pursuant to any set schedule.
Ms. Martin had no reason to doubt the
defendant's fitness as a parent. Ridge Allen
Hodges has visited defendant in [defendant's
town of residence].
24. Plaintiff Patty Sue McRoy testified she
felt it was in the child's best interests that
he live primarily with the plaintiffs, giving
due consideration to the wishes of the child.
Said plaintiff said the minor child was like
her own. Defendant testified he felt the
child's best interests would be served by
completing the school year while living with
plaintiffs so the child would not have to
change schools. Defendant further testified
he desired to have custody of the said child
by the start of the next school year in
August, 2002, after a graduated visitation
schedule was put in effect.
25. Defendant currently interacts well with
his neighbors, including children. Both
plaintiffs and defendant are fit and proper
persons to exercise the care, custody and
control of the minor child, Brandon Paul
Hodges.
26. Prior to February 8, 2002 (death of Robin
Hodges), defendant acted in a manner
inconsistent with his constitutionally
protected custody right pursuant to Price v.
Howard, 346 N.C. 68, 484 S.E.2d 528 (1997) and
Penland v. Harris, 135 N.C. App. 359, 520
S.E.2nd [sic] 105 (1999). Therefore,
plaintiffs/grandparents are entitled to
maintain an action for custody pursuant to
N.C.G.S. 50-13.1(a).
27. Robin Hodges, the mother of the minor
child, did not allow the defendant to
establish a relationship with the said minor
child, although the defendant acquiesced in
Robin Hodges' conduct.
28. Plaintiffs have resided in Beaufort
County during the said minor child's entire
life, as has defendant's mother and sister,
all of which defendant has been aware.
29. In chambers in the presence of counsel,
Brandon Paul Hodges, 7 years old, testified he
and Ridge Allen Hodges are good friends. He
further stated he wished to live with the
plaintiffs. The Court, in light of the
child's age, maturity and demeanor places very
little weight on his testimony as it relates
to his best interests.
30. Plaintiffs are fit and proper persons to
exercise the care, custody and control of
Brandon Paul Hodges, and it is currently in
the best interests of the said minor child
that his custody be placed temporarily with
the plaintiffs through the 2002 summer.
During this time, the defendant will continue
to establish a relationship with the minor
child through a gradually increased schedule
of visitation. It is also in the child's best
interests that custody be transferred to the
defendant once a relationship is established
between the child and defendant. . . .
The trial court thereafter concluded that it was in Brandon's best
interests to remain in plaintiffs' custody until August 2002, at
which time defendant would be granted permanent custody. From the
order granting permanent custody to defendant, plaintiffs appeal.
__________________________________________________
Plaintiffs argue that the trial court erred in granting
permanent custody of Brandon to defendant. For the reasons stated
hereafter, we agree with plaintiffs and therefore reverse the order
of the trial court.
[1] We note initially that, contrary to the argument by
defendant, the order of the trial court is a final order and is
therefore not interlocutory. Although the order places temporarycustody with plaintiffs, it places permanent custody of Brandon
with defendant. It moreover establishes visitation rights and a
visitation schedule for both parties. Even where an order grants
only temporary custody, it is not interlocutory unless the trial
court states a clear and specific reconvening time in the order,
and the time interval between the two hearings is reasonably brief.
See Brewer v. Brewer, 139 N.C. App. 222, 228, 533 S.E.2d 541, 546
(2000); Cox v. Cox, 133 N.C. App. 221, 233, 515 S.E.2d 61, 69
(1999). In the present case, the order of the trial court sets
forth no reconvening date, and clearly places permanent custody
with defendant. Because the order is a final one, it is not
interlocutory and is properly before this Court.
[2] Section 50-13.2(a) of the North Carolina General Statutes
provides that the court “shall award the custody of [a minor] child
to such person, agency, organization or institution as will best
promote the interest and welfare of the child.” N.C. Gen. Stat. §
50-13.2 (2001). In custody matters, the best interests of the
child is the polar star by which the court must be guided. See In
re DiMatteo, 62 N.C. App. 571, 572, 303 S.E.2d 84, 85 (1983).
Although the trial judge is granted wide discretion, a judgment
awarding permanent custody must contain findings of fact in support
of the required conclusion of law that custody has been awarded to
the person who will best promote the interest and welfare of the
child. See Story v. Story, 57 N.C. App. 509, 513-16, 291 S.E.2d
923, 926-27 (1982); Montgomery v. Montgomery, 32 N.C. App. 154, 231
S.E. 2d 26 (1977). “These findings may concern physical, mental,
or financial fitness or any other factors brought out by theevidence and relevant to the issue of the welfare of the child.”
Steele v. Steele, 36 N.C. App. 601, 604, 244 S.E. 2d 466, 468
(1978). “The welfare of the child is the paramount consideration
to which all other factors, including common law preferential
rights of the parents, must be deferred or subordinated . . . .”
Griffith v. Griffith, 240 N.C. 271, 278, 81 S.E. 2d 918, 923
(1954). Where a parent engages in conduct inconsistent with his or
her constitutionally protected status, such paramount status is
lost, and application of the “best interest of the child” standard
in a custody dispute with a nonparent does not offend
constitutional considerations. See Speagle v. Seitz, 354 N.C. 525,
530-31, 557 S.E.2d 83, 86-87 (2001) (holding that the trial court
properly awarded minor child to paternal grandparents rather than
mother under the best interests standard).
In the instant case, neither the evidence presented nor the
findings of the trial court support the trial court's conclusion
that Brandon's interests would best be served by placing permanent
custody with defendant. All of the evidence, as well as the trial
court's findings, tended to show that defendant had little or no
contact with and demonstrated no interest in the minor child until
the death of the child's mother, which occurred little more than a
month before the custody hearing. As such, the trial court
determined that defendant had engaged in behavior inconsistent with
his constitutionally protected status as a parent. At the time of
the hearing, defendant had visited with Brandon, but had not spent
more than one consecutive day with him. The trial court recognized
that Brandon had no relationship with defendant, but neverthelessfound that “once a relationship [was] established” it would be in
Brandon's best interests to live with defendant. The trial court
then set a time frame of approximately four months for transferral
of custody, during which time defendant and Brandon presumably
“would establish a relationship.” The trial court had no evidence,
however, and therefore made no findings, concerning the quality of
the relationship that it assumed defendant and Brandon would enjoy
after four months. As such, the trial court's finding that it was
in Brandon's best interests for permanent custody to be placed with
defendant is premature, speculative and unsupported by the
evidence.
In contrast to defendant, the evidence showed that plaintiffs
assisted “in the care and nurturing of the said minor child since
his birth.” Plaintiff Patty Sue McRoy interacted with Brandon on
a daily basis. Over the course of his life, Brandon resided with
plaintiffs on several occasions, both with and without his mother.
Following the death of his mother, plaintiffs assumed all
responsibility for Brandon, including obtaining grief counseling
for the child. There was substantial evidence presented by
plaintiffs at the hearing regarding their devotion to Brandon, as
well as their life-long financial support of him.
“When the court finds that both parties are fit and proper
persons to have custody, as it did here, and then adjudges that it
is in the best interest of the child for the father to have
custody, such holding will be upheld. But it must be supported by
competent evidence.” Green v. Green, 54 N.C. App. 571, 574, 284
S.E.2d 171, 174 (1981). Our examination and consideration of therecord leads us to the conclusion that the findings of fact set out
above are not supported by competent evidence, and that the
remaining findings of fact are not sufficient to support the
conclusion that it was in the child's best interest that his
custody be awarded to his father. See id. As such, this case must
be remanded for a new hearing on the issue of permanent custody.
Reversed and remanded.
Judges HUNTER and ELMORE concur.
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