An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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. COA02-1223


Filed: 5 August 2003


v .                                 Transylvania County
                                    No. 99 CVD 343

    Appeal by defendant from order entered 23 May 2002 by Judge D.K. Fox in Transylvania County District Court. Heard in the Court of Appeals 13 May 2003.

    H. Paul Averette for plaintiff appellees.

    Charles W. McKeller for defendant appellant.

    McCULLOUGH, Judge.

    This case involves the custody of Paul Benjamin Walter Powell (Benjamin), a minor child born on 9 September 1991 to defendant Tony Lee Powell and Terri J. Chamberlain. Plaintiffs are Benjamin's maternal grandparents. The facts leading to the custody dispute are as follows: On 19 January 1993, the trial court entered an order granting Ms. Chamberlain sole legal custody of Benjamin, while defendant received regular visitation and was required to pay child support. Ms. Chamberlain had another son, Kevin, from a prior relationship, and he and Benjamin were raised as brothers. Plaintiffs had an extensive role in raising both boys. By August 1999, Benjamin stayed with plaintiffs up to fournights per week.
    On 2 August 1999, Ms. Chamberlain was killed in an industrial accident. Afterwards, Benjamin lived with plaintiffs and his brother Kevin until 11 August 1999, when he went for a regularly scheduled visit with his father. Defendant assumed custody of Benjamin at that time and refused to return him to his grandparents, prompting plaintiffs to file a lawsuit seeking primary legal and physical custody of Benjamin. Plaintiffs obtained an ex parte order gaining custody of Benjamin on 20 August 1999. On 27 August 1999, the ex parte order was dissolved and Benjamin was returned to defendant pending further orders from the trial court; however, plaintiffs were granted visitation every weekend and the parties were required to allow Benjamin to attend the same elementary school.
    On 19 October 1999, the trial court entered an order finding defendant in contempt of court for willfully and intentionally failing to abide by the terms of the 27 August 1999 order regarding visitation because he failed to deliver Benjamin to his grandparents on 17 September 1999. Defendant again failed to deliver Benjamin to his grandparents on 24 December 1999. The trial court found him to be in criminal contempt of court and ordered him to spend five days in jail.
    On 5 June 2000, defendant's motion to dismiss plaintiffs' custody suit pursuant to N.C. Gen. Stat. § 1A-1, Rule 12(b)(6) was denied. Over a series of court dates -- 23 January 2002, 15 March 2002, 15 April 2002, and 8 May 2002 -- the trial court conductedbench hearings on the matter and heard arguments and evidence from both plaintiffs and defendant. After considering evidence, the trial court made the following pertinent findings of fact:
            6.    That during Terri J. Chamberlain's lifetime the Respondent developed and nurtured a waxing, living hatred and loathing for Terri Chamberlain, mother of Benjamin, and for the Plaintiff Brenda Allen, Benjamin's maternal grandmother. This antipathy evidences itself by both word and deed, and materially affects Respondent's ability to rear his son in that child's objective best interest, as set out below.

            * * * *

            8.    That the Plaintiff Duane L. Allen is a 40 year old man, in apparent robust health, very husky, and apparently forthcoming on the stand. His demeanor is placid. He is a country club groundskeeper and chief of a local volunteer fire department, a position he has held for some years. He is well-liked in his community and his marriage to the co- Plaintiff appears mutually satisfying and healthy. He has known Benjamin since the boy was an infant, is interested in him, and is assisting successfully in rearing Kevin. The centre of Duane Allen's life is the said volunteer fire department, and his family all enthusiastically join in that interest.

            * * * *

            10.    That the Plaintiff Brenda J. Allen is a 55 year old woman of compact build, apparent good health, and straightforward, efficient demeanor. She is gainfully employed. Despite the age differential between herself and her husband, her marriage is of many year's standing and appears healthy. She appears to recognize that the Respondent must needs play a majour role in Benjamin's life, but, along with her husband, desires also to re-unite Benjamin and his brother Kevin, whom she has been successfully rearing since before the death of her daughter Terri, the boys' mother. Her disciplinarymethods tend to the pacific, involving chiefly the teenage equivalents of “times-out”. She cooks and keeps house for her family consisting of her husband Duane, grandson Kevin, and, when visiting, Benjamin in a substantial two story brick three bedroom home in which there is adequate room to harbour Benjamin. For good reason she has little use for the Defendant, but conceals her rancor from Benjamin. The home of the Plaintiffs appears to be one of mutually supportive persons positively committed to fulfilling individually responsible roles. That the Plaintiffs have a Baptist church affiliation, participate in Bible study, and produced useful witnesses well-familiar with their reputation for good character in the community. . . .

            11.    That the Respondent Tony Lee Powell is a compactly built male, aged 33 years. His demeanor with the undersigned Judge over the months of hearings in this matter has always been pleasant and his deportment, off and on the witness stand, in and out of court during this hearing, appropriate. The Court cannot but admire his courage and persistent dedication as he deals with the profound results of injuries sustained in a motor vehicle accident, the pertinent details of which are set out below. At the last day of hearing in this matter it was reported that Respondent is now riding a bicycle for therapy and recreation. This would have appeared an unlikely exercise, given Mr. Powell's difficulty merely walking. His adjustment to the effects of his injuries has lent to Mr. Powell a certain deliberate dignity of person. In addition to his limitations of motor abilities, Respondent reports he suffers from hepatitis B and encephalitis, both in remission, but the later having robbed him of a portion of his memory. Further, the Respondent, having sired Benjamin out of wedlock, early-on formed an attachment to the child and evidenced a sense of paternal responsibility for him which does Mr. Powell credit. The Respondent, previously a hard, reliable worker, is presently unfitted for any meaningful gainful employment due to his physical condition. That Respondent has inrecent years become conscious of religious stirrings and has associated with a community of fellow Christian believers.

            12.    That, unfortunately, given the Respondent's attractive traits set out above, the Respondent has and does aggressively perceive checks or slights to what he thinks of as his rights and reacts in shockingly and violently divers negative ways. He further forms dislikes for other persons which colour profoundly his attitude and actions and which, nurtured, become long-lasting scars, never healing if circumstance throws those persons into his path regularly. These hatreds of the Respondent are so pure as to survive the subsequent death of their human objects. That, as matters of fact, these intense, uncompromising aspects of Respondent's personality cripple his ability to perceive or to act consistently in Respondent's own enlightened self interest as well as tainting his efforts to exercise paternal discretion day-to-day in Benjamin's best interest; indeed, as set out below, they have and do result in Mr. Powell, blinded to objective standards of deportment, unconsciously injuring and frustrating Benjamin's needs and spirit.
            13.    That it is difficult from the evidence presented in court to conjure-up the confluence of circumstances which led to the conception of Benjamin. The Respondent appears ever after that event to uniformly revile Benjamin's mother, Terri Chamberlain, in the most negative terms. The Court is confronted by consistent calumny (if the accusations are untrue) or vituperation (if the accusations are true in part or whole) from the lips of Respondent. We discover the object of his one-time affections was a fat, lazy bitch, to be short, and part of a cabal ever seeking to frustrate his rights in Benjamin. Respondent's aggressively harsh opinions continue to be expressed notwithstanding Ms. Chamberlain's untimely death in 1999. This attitude would be merely additional evidence of a vein of misanthropy in Respondent's approach to people were it not for the noxious habit he has and has had ofinsuring this view of the decedent was regularly and sometimes inventively inflicted upon Benjamin, the mother's child. As further elaborated-upon below, the Respondent has a concern regarding Benjamin's excessive weight. A chief way Respondent addresses this problem is to heartlessly harp upon the perceived similarity this creates between Benjamin and that fat, lazy woman who, incidentally, was unfortunately the only mother Benjamin will ever know, and, due to her death, that but fleetingly. Benjamin's weight should be of concern to whomever is his guardian. One would anticipate a sole surviving parent would, as an application of instinctive good child rearing practice, sublimate his negative feelings for a deceased parent and, at least, not hammer a child born to that parent with those feelings. That Respondent's use of this wholesome concern for Benjamin's health to unwholesomely poison the boy about his dead mother due to the Respondent's unquenched hatred of her demonstrates the emotional and cognitive limitations Respondent brings to the rearing of this particular mother's child. There are other, perhaps more profound, examples of these limitations, which are set- out below.

            14.    That the particular object of Respondent's animosity has long been the Plaintiff Brenda Allen. This antipathy has taken several forms of expression which have and do negatively impact Benjamin. When the child was aged two weeks the [Respondent] first physically assaulted Ms. Allen, a person twenty-three years his senior, the grandmother of his only child, and not incidentally, a female. Least this be presumed to be an isolated incident, apparently at a custody exchange of the child in June, 1998, Respondent allowed himself to be worked-up into a state of such morbid excitement that he cast seven year old Benjamin to the ground and beat Ms. Allen repeatedly with such force as to knock her off her feet. Often at these child exchanges Respondent would curse and revile the Plaintiff Ms. Allen, either individually or in connection with her daughter, Terri Chamberlain. This denigration of the child's mother and grandmother were sofrequent as to be predictable and would cause Benjamin to cower and hide in reaction. That the Respondent has repeatedly incurred punishment as for contempt of court orders in his willful evasion of ordered cooperation calculated to insure Benjamin had meaningful contact with his deceased mother's half of his family, this due largely if not exclusively to Respondent's personal hatred of Brenda Allen and in objective disregard of the best interests of Benjamin.

            That, immediately upon the death of Terri Chamberlain, the Respondent seized exclusive physical custody of Benjamin in a pre-emptive strike against Ms. Allen, with whom the child had theretofore resided, taking him abruptly from the home he was used to, withdrawing him from the school where he had sustaining friends of years' standing, and attempting unsuccessfully to secret the boy with Respondent's distant relatives. He arbitrarily severed even telephonic communications between Benjamin, the Plaintiffs, and Benjamin's beloved brother Kevin, all this at an acute moment of loss, grief, and confusion for the child. When finally bludgeoned by court action into resuming such contacts, Respondent has arbitrarily limited Benjamin's telephonic contact with his mother's family to quick calls of closely-timed ten minutes' duration, an exercise of control which appears to have no other reason than vindictiveness and is overtly contrary to Benjamin's legitimate and expressed wishes.

            15.    That Respondent's rearing of Benjamin since 1999 has been marked by prolonged periods of indifference to the boy's hygiene and the appropriateness and neatness of his clothing. In at least one significant incident, Respondent's casual reaction to Benjamin's severe physical distress led to neglect of what was a festering appendix and resulted in days of unnecessary discomfort and very real medical danger for the boy in September, 2001.

            That the Respondent resides in a mobile home with three bedrooms, suitable to harbourBenjamin, Respondent, and Respondent's adult brother, Carl. None of the residents of this home cook, so meals other than breakfast come from cans or are eaten at Respondent['s] mother's home, just two doors down; that is, when Respondent isn't in an active dispute with his own mother. Then it's food from cans.

            That, as an aside and as a substantive circumstance the Court weighs in making its determination in this matter, Respondent's occasional hostility to his own mother is not a unique manifestation. In the early 1990s it appears Respondent, in an incident the Court finds telling, was residing in what he regarded as his own house. Apparently members of Respondent's family differed from him in that assessment in what might have been an estate dispute among family members. Respondent, in an act unparalleled in the undersigned's experience, evidenced such livid anger at being challenged in this matter that he made what all admit was a deadly serious attempt to burn that house down and immolate himself in the flames. The incident demonstrates well how single-minded of purpose Mr. Powell is capable of being and to what extraordinary, if inappropriate, lengths he is prepared to go to satiate that purpose.

            That Benjamin, who sleeps alone in his own bedroom when at Plaintiffs', always shares a bed with the Respondent when with him. The Court doesn't exactly know what to make of this. At the least, this certainly isn't an arrangement calculated to instill an evolving sense of independency in a growing boy, aged ten years. The excuses advanced for this unusual arrangement by the Respondent do not impress: Benjamin's room is too illuminated at night, his bed always too littered to accommodate the boy, the bedroom too close to car noises from a nearby road.

            16.    That the Respondent's discipline of Benjamin appears to the court often inappropriate and more and more counter- productive. Respondent often screams at Benjamin, has used a waist belt to strike him, and has slapped him in the face. Benjamin hasturned into what all parties recognize as a whiner, but lately has also taken to confronting the Respondent, who is seriously limited in his physical coordination since his motor vehicle accident, and shouts back at him. Tellingly, Benjamin returned a blow for a blow in recent weeks. Striking a ten year old child has, in the opinion of the Court, diminished disciplinary value. Striking him in the face, none. When a child, especially one as big as is Benjamin, begins to confront a sole custodial parent who now has few physical resources to back up his pattern of yelling, of demeaning invective, and of corporal punishment, a crisis appears in the offing. One-on-one, it is obvious to the Court and is dawning upon Benjamin, that the boy is at least a match for his father, who has based his pattern of discipline upon his physical and moral ascendancy, both of which constitute slender reeds, indeed.

            17.    That perhaps the worst aspect of Respondent's parenting-as-reaction-to-the- Plaintiffs is the serious emotional hurt the resultant unnecessary separation of Benjamin and his half-brother Kevin has caused Benjamin. It needs to be emphasized that, once all the Parties to this action have either gone to their eternal rewards or to rest homes, the single close kin the orphaned Benjamin shall have remaining is Kevin. The quality of that fraternal relationship for decades to come is at least in part based upon the experiences the brothers share together now. Benjamin and Kevin were reared together from soon after Benjamin's birth until Respondent took custody of Benjamin in 1999. Although separated by several years in age, the boys were always close and were more than just siblings; they were each other's best friend. Since 1999 Respondent has enforced, for Respondent's own purposes, a strict distance between Benjamin and Kevin. He has bluntly told Benjamin that his keeping Kevin away from Benjamin whenever possible was because to do otherwise would somehow involve contact with Kevin's guardian, the Plaintiff Brenda Allen. Respondent admitted from the stand he has no personal animosity against Kevin; he opined that Kevin himself is“alright”. When Respondent weighs his own hatred for Brenda Allen against his own son's lively, fundamental instinct to maintain a close relationship with his only sibling, Benjamin loses. Respondent himself testified Benjamin should have a relationship with Kevin “sometimes”, but that he is doing “not too much” to achieve that end. In fact, Respondent is a positive impediment to that relationship. Considering that Respondent lives voluntarily with his own brother Carl and thus should especially appreciate Benjamin's needs in this matter, Respondent's attitude is all the more singular. Kevin loses, too; collateral damage inflicted by Respondent nurturing his malignant passion against the Plaintiff Brenda Allen. Kevin clearly recognized he was not welcome at Respondent's house, honored this perverse prejudice, and the boys have for the past three years made the best of their strictly limited time together, although it is abundantly obvious to the Court that Benjamin to the day of this hearing is profoundly wounded by this feckless stance of the Respondent and that it is a majour cause of his fractiousness and of a persistent, unnecessary unhappiness. Respondent went so far as to testify that it would indeed now be in Benjamin's best interest for Kevin to be able to visit in Respondent's house. Although Benjamin has for three years begged, whined, and otherwise pleaded for this privilege, Respondent admits he hasn't told him of this change of heart. Apparently Benjamin is supposed to read Respondent's mind on this matter of such fundamental importance to him.

            18.    That the Court's impression of Benjamin, gained from observing and hearing him as well as from the testimony of witnesses, is that of an obese, pleasant, articulate, conflicted ten year old fifth grader. He very much enjoys communing with the Plaintiffs and his brother Kevin when he is able to visit with them. He shares the family's passion for the volunteer fire department and in the department-related affairs into which they immerse themselves. At the Plaintiffs' there is no malevolent conversation relating to the shortcomings ofeither of his parents. At the Plaintiff[s'] is his only sibling, Kevin, with whom Benjamin strongly desires much more contact.

            That Respondent's incessant method of addressing Benjamin's obvious overweight problem has alienated and depressed the boy. As aforementioned, informing the boy that the Respondent doesn't want him to “be fat and lazy like your Mom” not only isn't calculated to achieve a thinner Benjamin, it's quite likely to depress and anger him at the same time. And it has. Benjamin is irritated by his father's calling him fat, quite conscious of the evolving character of the discipline in Respondent's house, and unhappy that Respondent regularly points out the shortcomings of, and his hatred for, Benjamin's deceased mother and members of her family. Benjamin finds especially offensive the Respondent's denigrating his maternal grandmother, the Plaintiff Brenda Allen, which he reports Respondent does “plenty of times”, and, especially, the long periods of enforced isolation from Plaintiffs and from brother Kevin.

            That Benjamin opines he prefers staying with the Plaintiffs[], would like to do it more, feels he's consigned to stay at his paternal grandmother's too much when in his father's custody, but appears hesitant to go too far in articulating his opinion in this matter as he has been told by the Respondent that, due to injuries sustained in the 1999 collision, even a minor accident now could kill the Respondent. The Court needs not point out that attempting to preserve a child's loyalty and his acquiescence to custody partly by pointing out ones own alleged eminent [sic] mortality is not playing on a level field with that child and is not a sterling example of practical parenting.

            19.    That the court has observed, heard, and weighed the examination and cross examination of all three persons presently residing in Plaintiffs' home, to wit: the Plaintiffs themselves and Kevin Chamberlain and finds as fact that they are all appropriate persons to share a home withBenjamin.

            That the Court has not had the opportunity to observe nor hear Respondent's adult brother, Carl, who shares the Respondent's home, and thus is unable to form an opinion as to his suitability as a co- resident with Benjamin.

    The trial court made the following relevant conclusions of law:
            3.    That the Respondent Tony Lee Powell is the sole surviving natural parent of the minor child Benjamin Chamberlain and is thus afforded Constitutional protections of a paramount interest in the custody, companionship, care, and control of said child as against the Plaintiffs Brenda J. Allen et vir Duane L. Allen, the maternal grandmother and step grandfather, respectively, of the aforenamed minor child, who themselves are persons who for prolonged periods in the past have been physical custodians of the said child and have been and remain significant people, and their household a significant household, in the life of the child.

            4.    That, as evidenced by the circumstances set out in the Findings of Fact, above, the Respondent by both commissions and omissions which are inconsistent with the presumption of his aforementioned Constitutionally protected status, has lost that paramount interest in the custody of the child Benjamin, and that the Court must needs then consider, as to the matter of the custody of Benjamin, what it is that is in Benjamin's best interest and thus to weigh the resources of the Plaintiffs and of the Respondent to nurture this particular child.

            5.    That, as evidenced by the circumstances set out in the Findings of Fact, above, the Plaintiffs are persons who are appropriate to exercise the legal and physical care, custody, and control of the Plaintiff Brenda J. Allen's maternal grandson, Benjamin Chamberlain, subject to the right of secondary custody and visitation of the Respondent, andthat they occupy a home appropriate in which to nurture the child, and that, further, their assuming the custodial offices hereinafter placed in them is in the child Benjamin's best interest.

            6.    That, as evidenced by the circumstances set out in the Findings of Fact, above, the Respondent is a person appropriate to exercise secondary physical custody and care of his child Benjamin, subject to the primary legal and physical care, custody, and control of the Plaintiffs, with right of visitation, and that this is in the best interest of the said child.    

The trial court ordered that plaintiffs were to have custody of Benjamin effective 26 May 2002. Defendant appealed.
    On appeal, defendant argues the trial court erred by (I) concluding that he acted so inconsistently with his paramount right to care, custody, and control of his son as to forfeit his constitutional right to be a parent; and (II) denying his motion to dismiss plaintiffs' claim because the trial court never found that he was unfit. For the reasons stated herein, we disagree with defendant's arguments and affirm the order of the trial court.

     Constitutionally Protected Status of Natural Parents
    “[T]he Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.” Troxel v. Granville, 530 U.S. 57, 66, 147 L. Ed. 2d 49, 57 (2000). “[A]bsent a finding that parents (i) are 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.” Petersen v. Rogers, 337 N.C. 397, 403-04, 445S.E.2d 901, 905 (1994). Thus, while a presumption in favor of natural parents exists, “a parent's right to custody is not absolute.” Adams v. Tessener, 354 N.C. 57, 61, 550 S.E.2d 499, 502 (2001).
            A natural parent's constitutionally protected paramount interest in the companionship, custody, care, and control of his or her child is a counterpart of the parental responsibilities the parent has assumed and is based on a presumption that he or she will act in the best interest of the child. Therefore, the parent may no longer enjoy a paramount status if his or her conduct is inconsistent with this presumption or if he or she fails to shoulder the responsibilities that are attendant to rearing a child. If a natural parent's conduct has not been inconsistent with his or her constitutionally protected status, application of the “best interest of the child” standard in a custody dispute with a nonparent would offend the Due Process Clause. However, conduct inconsistent with the parent's protected status, which need not rise to the statutory level warranting termination of parental rights . . . would result in application of the “best interest of the child” test without offending the Due Process Clause. Unfitness, neglect, and abandonment clearly constitute conduct inconsistent with the protected status parents may enjoy. Other types of conduct, which must be viewed on a case-by-case basis, can also rise to this level so as to be inconsistent with the protected status of natural parents. Where such conduct is properly found by the trier of fact, based on evidence in the record, custody should be determined by the “best interest of the child” test mandated by statute.

Price v. Howard, 346 N.C. 68, 79, 484 S.E.2d 528, 534-35 (1997) (citations omitted). See also Adams, 354 N.C. at 61-62, 500 S.E.2d at 502; and Speagle v. Seitz, 354 N.C. 525, 530-31, 557 S.E.2d 83, 86-87 (2001), reh'g denied, 355 N.C. 224, 560 S.E.2d 138 (2002).    Due to the serious nature of the right involved, “the decision to remove a child from the custody of a natural parent must not be lightly undertaken. Accordingly, a trial court's determination that a parent's conduct is inconsistent with his or her constitutionally protected status must be supported by clear and convincing evidence.” Adams, 354 N.C. at 63, 550 S.E.2d at 503. We recognize that “[n]o decisions in North Carolina have defined precisely what findings are necessary for the trial court to conclude that a natural parent is unfit.” Raynor v. Odom, 124 N.C. App. 724, 731, 478 S.E.2d 655, 659 (1996). The inquiry therefore must be made on a case-by-case basis. Price, 346 N.C. at 79, 484 S.E.2d at 534. With the gravity of our task in mind, we turn to the facts before us.
    In the present case, plaintiffs' complaint alleged that defendant was not a fit and proper person to have the care, custody and control of Benjamin. The trial court conducted hearings on four separate occasions and made extensive findings of fact, which are uncontroverted by defendant. The trial court found that defendant, by both word and deed, engaged in a pattern of behavior which was inconsistent with his protected status as a natural parent. The trial court's findings of fact indicate that defendant “developed and nurtured a waxing, living hatred and loathing” for both Benjamin's deceased mother and his grandmother, a plaintiff herein, and made no secret of that fact to Benjamin. The trial court further found that defendant's hatred directly affected his ability to act in Benjamin's best interest. Defendant hasphysically assaulted plaintiff Brenda Allen in Benjamin's presence on more than one occasion and consistently “reacts in shockingly and violently divers negative ways” when he feels he has been wronged, and his anger continues unabated over time. At one time, defendant even tried to set himself and his house on fire during a property dispute with members of his family.
    Defendant twice has been found in contempt of court for failing to obey court orders regarding visitation. Immediately after Ms. Chamberlain's death, defendant refused to return Benjamin to plaintiffs after a scheduled visit and threatened to enroll him in a different elementary school. Defendant “arbitrarily limited Benjamin's telephonic contact with his mother's family” and did so simply out of “vindictiveness.” He persisted in this conduct until ordered by the trial court to change.
    Defendant repeatedly calls Benjamin's mother “a fat, lazy bitch” and constantly criticizes the entire maternal side of Benjamin's family, causing the boy to cower in fear. Defendant, for no reason other than to cause discord for plaintiffs' family (particularly plaintiff Brenda Allen), unnecessarily refused to allow Benjamin to see his brother Kevin, even though defendant knew the boys were close and that the separation had serious negative repercussions on his son. Defendant has harmed Benjamin's self- image by repeatedly calling him fat and has neglected his hygiene and health in the past; in September 2001, Benjamin suffered from a festering appendix for several days due to defendant's indifference. When Benjamin stays with defendant, he is forced toshare a bed with his father, even though he is over ten years old. Defendant also has a history of using inappropriate methods of punishing Benjamin, including using a belt and slapping the child in the face. This has depressed and angered Benjamin. Finally, defendant has made repeated references to his own mortality in an effort to keep Benjamin from complaining about the custody situation, in effect making Benjamin feel guilty and responsible for any harm that comes to defendant.
    We believe that the foregoing description of defendant's words and actions show that he repeatedly engaged in conduct that was inconsistent with his protected status as a natural parent and served to remove that presumption, thereby triggering a “best interest of the child” analysis. Under such analysis, the trial court made detailed findings of fact as to the suitability of both plaintiffs and defendant. The age, health, disposition, employment status, marital status, and mental stability of the plaintiffs and of defendant were addressed in the findings of fact. As is evident from the findings of fact, plaintiffs have a stable family life, a good home, and have expressed a keen desire to raise Benjamin alongside his brother Kevin. While plaintiffs have “little use” for defendant, they recognize he has a role to play in his son's life and do not speak negatively about him around Benjamin. Defendant, on the other hand, sustained serious injuries in a car accident and cannot work. While he has a home with three bedrooms, he incongruously insists that Benjamin sleep in his bed with him. Defendant does not cook, and he and Benjamin often eat cannedmeals. Defendant has a history of inappropriately disciplining Benjamin, has consistently criticized Benjamin's appearance and behavior, has been openly hostile and critical of the maternal side of Benjamin's family, and has not been a good role model for the boy.
    Based on these numerous findings, the trial court concluded it was in Benjamin's best interest for plaintiffs to have primary custody of him. We likewise conclude that findings of fact 1 through 19 were supported by clear and convincing evidence, and in turn, provided ample support for the trial court's determination that defendant “by both commissions and omissions which are inconsistent with the presumption of his aforementioned Constitutionally protected status, has lost that paramount interest in the custody of the child Benjamin[.]” While actual use of the term “unfit” is the better practice, we believe the trial court's extensive findings of fact clearly lead to that conclusion. The trial court appropriately moved to a “best interest of the child” analysis and properly concluded that Benjamin's interests would best be served if plaintiffs had primary custody, care, and control of him.
    We also note that N.C. Gen. Stat. § 50-13.2(b) (2001) requires that “[a]ny order for custody shall include such terms, including visitation, as will best promote the interest and welfare of the child.” Even though the trial court granted plaintiffs primary custody of Benjamin, defendant was awarded secondary custody and extensive visitation. We believe the trial court properlyconsidered the matter before it and made appropriate findings of fact and conclusions of law. Accordingly, defendant's first assignment of error is overruled.
     Motion to Dismiss
    By his second assignment of error, defendant argues the trial court erred by denying his motion to dismiss plaintiffs' complaint because there was no supporting allegation that he was unfit. Stated another way, defendant argues the plaintiffs' allegation did not raise any issue of conduct inconsistent with his constitutionally protected right to be a parent to his child and was therefore insufficient to allege unfitness. Again, we disagree.
    Plaintiffs argue, and we agree, that defendant's motion to dismiss was based on a lack of standing, not on insufficient pleadings. The question of whether plaintiffs' complaint contained supporting allegations of defendant's unfitness is raised for the first time on this appeal. We therefore do not address it, as “the law does not permit parties to swap horses between courts in order to get a better mount[.]” Weil v. Herring, 207 N.C. 6, 10, 175 S.E. 836, 838 (1934). Had defendant wished to challenge the sufficiency of the pleadings, the appropriate method for doing so was to file a motion under N.C. Gen. Stat. § 1A-1, Rule 12(c) (2001). This he did not do. We note, in passing, that plaintiffs' amended complaint specifically alleged that defendant was unfit, and the original complaint contained several specific allegations on that point. Accordingly, defendant's final assignment of erroris overruled.
    In sum, we believe plaintiffs carried their burden of demonstrating that defendant forfeited his protected status, thereby triggering the “best interest of the child” analysis. Upon careful review of the arguments presented by the parties, we conclude the trial court did not abuse its discretion in awarding primary custody of Benjamin to plaintiffs and secondary custody with extensive visitation to defendant. The order of the trial court is therefore
    Judges WYNN and ELMORE concur.
    Report per Rule 30(e).

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