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JAMES M. EVERETTE, JR. AND GLORIA EVERETTE, Plaintiffs v. PATRICE
A. COLLINS, Defendant
2. Child Support, Custody, and Visitation--custody--physical placement with paternal
The trial court did not violate defendant mother's constitutional rights in a child custody case by granting physical placement with the minor child's paternal grandmother, because: (1) the custody action was between both natural parents and the trial court was careful to point out that no evidence was presented nor findings made as to the constitutional presumption both parents enjoyed; (2) using a best interest analysis, the trial court granted primary physical custody to plaintiff and specifically approved the current placement of the minor child in the home of plaintiff's mother; (3) plaintiff's mother was not granted any custodial rights; and (4) defendant, in addition to obtaining joint legal custody, was granted liberal visitation privileges as well as additional visitations as agreed upon by the parties.
Mitchell S. McLean for plaintiff-appellees.
Pritchett & Burch, PLLC, by Melissa L. Skinner, Lars P. Simonsen and Lloyd C. Smith, Jr., for defendant-appellant.
Patrice A. Collins (defendant-mother) appeals from an order signed 2 July 2004 awarding James M. Everette, Jr. (plaintiff - father) primary physical custody of their minor child, D.J.E. (See footnote 1) Plaintiff-father and defendant-mother were granted joint legal custody of D.J.E. The trial court order also specifically approve[d] the current placement of [D.J.E.] in the home of the plaintiff's mother, Gloria Everette (plaintiff-grandmother).
Plaintiff-father and defendant were married on 9 February 1998. The couple was separated in May 1998 and D.J.E. was born on 14 October 1998. In December 1998, defendant and D.J.E. left North Carolina for defendant to complete her military duty assignment without plaintiff-father. During that time, defendant and D.J.E. visited with plaintiffs every other weekend.
From June 1999 until 2001 , defendant's mother and defendant's two children (D.J.E. and another child) lived with defendant in Fort Hood, Texas. For three months in 2000 and six months in 2001, D.J.E. stayed with plaintiff-grandmother in North Carolina. In September 2001, defendant, D.J.E. and her other child moved to NewMexico due to military reassignment .
In March 2002, defendant began having seizures and began to experience grand mal seizures in June 2002. During this time, plaintiff-father was stationed at Fort Carson, Colorado. Defendant allowed D.J.E. to stay with plaintiff-grandmother in Conway (Northampton County), North Carolina until defendant could control her seizures.
On 16 January 2003, defendant suffered an allergic reaction to her anti-seizure medication and went into a coma from which she awoke in March 2003. The allergic reaction caused severe burns over defendant's body and the stem cells in her eyes burned, which caused her blindness. Defendant began rehabilitation and resided in Maryland from May to July 2003 to receive further treatment for her condition. In late May 2003, defendant told plaintiffs she was coming to North Carolina to see D.J.E. When defendant arrived at plaintiff-grandmother's home in Conway, she was informed plaintiff- father had taken D.J.E. to his home in Fayetteville. Defendant traveled to Fayetteville, but was not allowed to see D.J.E.
Shortly thereafter, plaintiffs filed a complaint for custody of D.J.E. and a Temporary Custody Order was entered granting plaintiffs temporary legal custody and placing D.J.E. with plaintiffs. In July 2003, defendant moved to Louisiana to reside with her mother and her other child. While there, she underwentseveral eye operations, including a stem cell transplant, from August 2003 through January 2004 .
On 26 July 2004, a Custody Order was entered by Judge Thomas R. J. Newbern. Pursuant to the terms of the order, plaintiff- father and defendant were granted joint legal custody of D.J.E. Plaintiff was granted primary physical custody of D.J.E. and the trial court approved physical placement with plaintiff-grandmother. Defendant was granted reasonable visitation privileges which included every other weekend, one-half of the holiday periods, and two separate two-week periods during the summer. From this order, defendant appeals.
10. That defendant has suffered serious medical
complications which have left her basically blind at this
point and unable to care for the needs of [D.J.E.], who
is five years old; the defendant was unable to walk in
the courtroom without assistance. 11. That the
defendant's living situation is uncertain at this time
due to her medical condition.
That at this time the plaintiff, James M. Everette, Jr.
can offer more stability for the child and has acted in
the child's best interests; the minor child has resided
with the plaintiff's mother, Gloria Everette, since May,
2002; during this time the child has resided in a safe,
stable and wholesome environment, which has been
conducive to the best interests of the child; the child
is flourishing in this environment and is doing very well
in all respects.
13. That the plaintiff, James M. Everette, Jr. has acted in the child's best interests and has visited the child every weekend since his return home from active military duty in Iraq; said plaintiff has placed his child in a stable environment which has been in the best interests and general welfare of his child, considering his continuing military service in Fayetteville, North Carolina.
. . .
15. That the defendant is currently receiving medical treatment to assist her in her eyesight; however, she is still basically blind and unable to care for the needs of a five-year-old child.
. . .
18. That the defendant had a lack of communication with
Gloria Everette and the minor child between May, 2002 and
the filing of this lawsuit; this was largely due to the
defendant's medical condition; however, even considering
her medial [sic]
condition and other reasonable
considerations, the defendant did not communicate with
Gloria Everette or [D.J.E.] as much as she should have
during that period; after the filing of the lawsuit the
defendant did begin communicating more frequently and
appropriately with Gloria Everette and [D.J.E.]
19. That since May, 2002 the defendant was unable to
visit with [D.J.E.] except on occasions when thedefendant was already in the area in connection with this
In addition to these challenged findings, the trial court made a finding of fact allowing defendant's motion to dismiss plaintiff- grandmother from this action, as there has been no compelling evidence presented that would result in the defendant losing her constitutional presumptions as a parent. The trial court concluded that plaintiff, James M. Everette, Jr., is a fit and proper person to have physical custody of [D.J.E.] and it would be in the best interests of the child to be in his physical custody. Further the trial court concluded that defendant is a fit and proper person to have reasonable visitation privileges with the minor and it would be in the best interests of the child to have reasonable visitation with the defendant. See In re Montgomery, 311 N.C. 101, 109, 316 S.E.2d 246, 251 (1984) ([T]he best interest of the child is the polar star.); Wilson v. Wilson, 269 N.C. 676, 678, 153 S.E.2d 349, 351 (1967) (The welfare of the child . . . is always to be treated as the paramount consideration[.]).
In the instant case, defendant admits she is still blind, cannot drive and cannot cook, except on good days. At the 2004 court appearances, defendant could not read and was unable to walk without assistance. Defendant is currently unable to take care of her own needs as well as those of a five-year-old. Defendant'shealth is uncertain as she attempts to recover from the effects of her stem cell transplant. Consequently, defendant's future plans as to providing care for herself or D.J.E. are unknown. Plaintiff and his mother are presently providing a stable and healthy environment for D.J.E. On this record there is competent evidence to support the trial court's decision to grant plaintiff-father primary physical custody. This assignment of error is overruled.
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