An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Proced ure.

NO. COA02-655


Filed: 1 July 2003


v .                         Gaston County
                            No. 01 CVD 0041


    Appeal by third-party intervenor movant, from order entered 13 February 2003 by Judge Dennis J. Redwing, District Court, Gaston County. Heard in the Court of Appeals 3 June 2003.

    Richard B. Schultz for the movant.

    Tracie May Haney, Pro se.

    WYNN, Judge.

    Under N.C. Gen. Stat. § 50-13.2(b1), a grandparent may intervene in an ongoing custody dispute and request visitation with their grandchild. See Penland v. Harris, 135 N.C. App. 359, 520 S.E.2d 105 (1999). By this appeal, a grandmother argues that the trial court erroneously denied her motion to intervene in an ongoing custody dispute between her daughter and former son-in-law because her grandchildren did not live in an intact family. We disagree and therefore, uphold the trial court's decision.
    The underlying facts tend to show that on 4 January 2001, Sidney Lamar Allen brought an action against his ex-wife, TracieMay Haney, to maintain his custody of their minor daughter X and seeking to maintain his visitation rights with the couple's other minor daughter Y who was in the custody of his ex-wife. On 5 June 2001, the maternal grandmother, Sharon K. Wolgamot, moved to intervene as a party in the custody dispute seeking either custody or visitation. After several continuances, the parties agreed on a custody and visitation plan and a consent judgment was filed on 8 September 2001. However, the consent judgment did not address the maternal grandmother's motion to intervene. On 19 September 2001, the district court heard and denied the motion to intervene concluding the family was intact.
    On appeal, the grandmother contends the trial court erroneously denied her motion to intervene pursuant to N.C. Gen. Stat. § 50-13.2(b1) because there was an ongoing custody dispute between the biological parents and the children were not a part of an intact family. We disagree.
    First, under Fisher v. Fisher, 124 N. C. App. 442, 477 S.E.2d 251 (1996), this Court held that a single parent living with his or her child constitutes an intact family. In this case, the record shows the children lived with either their mother or their father. Thus, the record shows the children lived in an intact family.
    Second, even assuming the children did not live in an intact family, the record shows the natural parents resolved any custodial dispute by consent. Thus, the grandmother could not show that there was an existing custodial dispute.    Finally, the grandmother neither alleged the parents were unfit and improper persons to have custody nor did she allege that it was in the best interests of the children that she have either custody or visitation in her motion to intervene. See Campbell v. Campbell, 63 N.C. App. 113, 304 S.E.2d 262 (1983).
    In sum, we uphold the trial court's denial of the grandmother's motion to intervene in this matter.
    Judges McCULLOUGH and ELMORE concur.
    Report per Rule 30(e).

*** Converted from WordPerfect ***