An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1075


Filed: 17 June 2003


v .                             Wayne County
                                No. 01 CVD 1933

    Appeal by defendant from judgment entered 11 February 2002 by Judge Lonnie Carraway in District Court, Wayne County. Heard in the Court of Appeals 20 May 2003.

    Gerrans, Foster & Sargeant, P.A., by Jonathon L. Sargeant for defendant-appellant.

    No brief filed for plaintiff-appellee.

    WYNN, Judge.

    This appeal arises from a determination by the trial court that the best interests of the minor child were served by awarding custody to a non-party to the civil action. For the reasons stated in Boone v. Boone, 8 N.C. App. 524, 174 S.E.2d 833 (1970), we must reverse the order awarding custody to a non-party and remand this cause for further hearing and findings.
    Although N.C. Gen. Stat. § 50-13.1(a) grants standing to “[a]ny parent, relative, or other person . . . claiming the right to custody of a minor child [to] institute an action or proceeding for the custody of such child,” it neither grants standing, norgives the trial court personal jurisdiction, over those who merely desire custody without instituting an action or proceeding for custody in the courts of North Carolina. See e.g., In re Custody of Edwards, 25 N.C. App. 608, 611, 214 S.E.2d 215, 217 (1975); McDonald v. Wrigley, 870 P.2d 777, 780 (Okla. 1994) (“In order for a divorce court to be able to award custody to a third party that party must be before the court.”). Thus, as in In re Custody of Edwards, “we think the proceeding should be remanded with directions that the trial court issue the necessary notices and orders to make [Hattie Wheeler] a party to this action to the end that the court has effective jurisdiction over her person.”
    Judges McCULLOUGH and ELMORE concur.
    Report per Rule 30(e).

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