Appeal by defendant from order entered 1 June 2006 by Judge
Ann McKown in Durham County District Court. Heard in the Court of
Appeals 11 October 2007.
Gabriela J. Matthews & Associates, P.A., by Gabriela J.
Matthews; and Tharrington Smith, L.L.P., by Jill Schnabel
Jackson, for plaintiff-appellee.
Darsie, Sharpe, Mackritis & Dukelow, P.L.L.C., by Lisa M.
Dukelow and Jaye Meyer, for defendant-appellant.
Blan V. Minton; Latham & Watkins LLP, by Robyn L. Ginsberg and
Kendall C. Burman; and Center on Children and Families, by
Barbara Bennett Woodhouse, for amici curiae National
Association of Social Workers and National Association of
Social Workers, North Carolina Chapter.
Professor Suzanne Reynolds for amicus curiae North Carolina
Association of Women Attorneys.
Defendant Irene Dwinnell appeals from the trial court's order
awarding permanent joint legal and physical custody of her minor
child to Dwinnell and her former domestic partner, plaintiff
Joellen Mason. It is important to first observe that the factual
context of this case _ involving same sex domestic partners _ is
immaterial to the proper analysis of the legal issues involved.
The fundamental question presented by this appeal is whether the
district court's findings of fact are sufficient to support its
conclusion of law that it should apply the "best interest of thechild" standard in determining whether Mason _ who is not a legal
(See footnote 1)
of the child _ should be awarded custody of the child,
including visitation. We hold that the trial court properly
applied the controlling authority of Price v. Howard, 346 N.C. 68,
484 S.E.2d 528 (1997), and, accordingly, we affirm the trial
Facts and Procedural History
The district court made the following pertinent findings of
fact. Mason and Dwinnell were domestic partners for eight years.
At some point during that relationship, Dwinnell learned that, for
medical reasons, she would need to pursue a pregnancy at that time
if she wanted biological children. Although Mason had no plans to
bear a biological child, she wanted to have a family with Dwinnell.
Subsequently, on 25 November 1995, Mason and Dwinnell held a
commitment ceremony attended by their families and friends.
Mason and Dwinnell together researched and discussed their
options for conceiving a child, including use of an anonymous or
known donor and the various sperm donation programs available.
Ultimately, they mutually chose an anonymous sperm donor who had
physical characteristics resembling those of Mason. Dwinnell and
Mason together attended all of Dwinnell's inseminations and, after
she became pregnant, all of her prenatal care appointments,
sessions at the hospital, and childbirth classes. They also
planned and prepared the child's nursery together. A birth plan was developed that included Mason's participating
in the birth of the child. Mason in fact attended the child's
birth on 11 January 1997 and cut his umbilical cord. Combining
their surnames, Dwinnell and Mason named the child Mason Dwinnell.
Although Dwinnell's name was the only name listed as a parent on
the child's birth certificate, evidence was presented that the
parties mutually desired to include both Mason and Dwinnell on the
birth certificate, but the hospital refused to do so.
Dwinnell and Mason discussed and agreed upon the godparents of
the child. They held a baptismal ceremony for the child at which
they publicly presented themselves to family and friends as the
child's two parents. The women explained how they derived the
child's name by combining their last names, and both Mason's
parents and Dwinnell's parents were recognized as the child's
Dwinnell has stipulated that following the child's birth, "he
lived with both parties who were acting as a family unit."
Dwinnell and Mason shared caretaking responsibilities for the child
with Mason normally caring for him during weekday mornings.
Although the women shared paying household expenses and the child's
individual expenses, Dwinnell and Mason agreed that Mason would
claim the child as a dependent for all income tax purposes.
On 22 March 2000, when the child was three years old, Dwinnell
and Mason signed before a notary public a "Parenting Agreement"
prepared by an attorney. Each woman had received a draft and had
an opportunity to review it prior to signing it. According to thedistrict court, Dwinnell and Mason both wished to enter into an
agreement that gave Mason all of the rights and responsibilities of
an equal parent.
The document recited that (1) each party acknowledged and
agreed that "they jointly decided to conceive and bear a child,
based upon their commitment to each other and their commitment to
jointly parent a child;" (2) Mason "would legally adopt this child,
with the consent and joinder of [Dwinnell], if the laws of the
State of North Carolina allowed for second parent adoptions, which
they currently do not;" (3) each party acknowledged and agreed that
"although [Mason] is not the biological mother, she is a de facto
parent who has and will provide the parties' child with a stable
environment and she has formed a psychological parenting
relationship with the parties' child;" (4) "each party further
acknowledges and agrees that their child's relationship with
[Mason] should be protected and promoted to preserve the strong
emotional ties that exist between them;" and (5) "the parties
desire to make provisions regarding the support, custody and care
of their child in the event that they should cease living together
as a family . . . ." The document then set forth provisions
relating to Mason's custody, visitation, and financial support
should the women's relationship terminate, as well as other
provisions addressing what would happen if Dwinnell was unable to
care for the child. The document specifically stated: "Each party
acknowledges and agrees that all major decisions regarding their
child, including, but not limited to, residence, support,education, religious upbringing and medical care shall be made
jointly by the parties and that their child shall be involved in
the decision-making to the extent he is able, by maturity, to do
Also in 2000, Dwinnell executed a minor health care power of
attorney authorizing Mason to obtain medical care for the child.
Mason would take the child to the doctor if he needed medical
attention while she was caring for him. Mason also went with
Dwinnell to the majority of the child's annual pediatric
Consistent with the Parenting Agreement, Dwinnell and Mason
discussed the child's education and mutually agreed for him to
attend private school at Carolina Friends School. Both Dwinnell
and Mason attended parent-teacher conferences for the child. In
addition, until this litigation, Dwinnell and Mason discussed and
mutually agreed upon all of the child's extracurricular activities.
Dwinnell has stipulated that Mason paid the majority of
daycare and preschool expenses; all of the child's school tuition
for four years and one semester, with a fifth year's tuition paid
by a trust funded by Mason's parents; and all of the child's
before- and after-care from 2000 through June 2004. Dwinnell has
further stipulated that Mason's parents established an irrevocable
trust for the minor child, as they had for all of their
grandchildren, with Dwinnell and Mason executing documents in which
they agreed to serve as co-trustees. Mason established a college
savings account for the child funded by Mason and her parents. When completing forms relating to the child, Dwinnell marked
through "Husband," "Father," or "Guardian" and inserted "co-
parent," followed by Mason's name. Such forms admitted at trial
included the application for enrollment at Carolina Friends School
and a contract with the school completed by Dwinnell and Mason
jointly, as well as a consent form signed by both Dwinnell and
Mason for the child to have therapeutic intervention at
Developmental Therapy Associates. In addition, in 2001, Dwinnell
executed a will designating Mason as the child's guardian if she
In May 2001, Dwinnell and Mason decided to cease living
together, and, in September 2001, Mason moved one block away. From
that date until 2004, Dwinnell and Mason exercised parental
responsibilities for the child in their respective homes, including
overnight stays. Dwinnell has stipulated that on most mornings
from October 2001 through much of 2003, after the child had spent
the night with her, she would drop the child off at Mason's house,
and Mason would take the child to daycare.
Although the parties did not at first have a set custody
schedule, beginning in early 2003, Dwinnell would have the child
for two days, followed by two days with Mason, with the parties
alternating weekends. In early 2004, however, Dwinnell changed the
schedule, and Mason consulted an attorney. Following a mediation,
the parties agreed to have the child see a child therapist. When
the therapist discussed custodial schedules with the child, despite
Dwinnell's notifying him that he should not do so, the child was nolonger sent to see that therapist. Beginning in October 2004,
Dwinnell would only allow her child to visit Mason every other
weekend and one evening each week for dinner. Dwinnell also
removed Mason's name from the school pick-up list.
On 18 October 2004, Mason filed a complaint for custody.
Dwinnell moved to dismiss the complaint, but the district court
denied the motion on 20 December 2004. On 21 January 2005, the
trial court granted the parties temporary joint legal and physical
custody of the child, specifying that the child would spend equal
time with each party. Following a 10-day hearing, the district
court entered an order of permanent custody on 1 June 2006.
In the permanent custody order, the district court found, in
addition to the findings recited above, that Dwinnell "encouraged,
fostered, and facilitated the emotional and psychological bond
between the minor child and [Mason]." Further, "[t]hroughout the
child's life, [Mason] has provided care for him, financially
supported him, and been an integral part of his life such that the
child has benefited from her love and affection, caretaking,
emotional and financial support, guidance, and decision-making."
Based on its findings of fact, the district court concluded
first that Mason had standing to file a custody action. The court
then concluded that "[b]y allowing [Mason] to be involved in the
minor child['s] life as set forth above in the findings of fact
and voluntarily executing a Parenting Agreement to share parental
rights and responsibilities, [Dwinnell] has acted inconsistent with
her paramount parental right . . . ." As a result, the courtconcluded that it should determine the custody issues based on the
child's best interests. Alternatively, the court concluded that
Mason "is a parent by estoppel, given [Dwinnell's] conduct in
establishing [Mason] as a parent to the child from preconception
through 2004. Therefore, [Dwinnell] is now estopped from alleging
that [Mason] is not a parent." Finally, the court concluded, based
on findings of fact additional to those summarized above, that it
was in the best interest of the child that the parties be granted
permanent joint legal and physical custody of the child. The
decretal portion of the order set forth detailed provisions
regarding the operation of the joint legal and physical custody.
On 21 June 2006, Dwinnell filed a notice of appeal from the 1
June 2006 order. On 24 July 2006, the court entered an order
amending its 1 June 2006 permanent custody order to correct "a
clerical error in the facts and conclusions." The court amended
one finding of fact and one conclusion of law to add that it was
making its findings "by clear, cogent and convincing evidence."
The order noted that the court had articulated the proper standard
"on the record on several occasions, but inadvertently omitted it
from its Order."
24 July 2006 Order
 As an initial matter, we address Dwinnell's assignment of
error arguing that the trial court improperly entered its 24 July
2006 order amending its 1 June 2006 permanent custody order afterDwinnell had already filed a notice of appeal. We first note that
the record on appeal contains no notice of appeal from the 24 July
order. The sole notice of appeal included in the record on appeal
references only the 1 June 2006 order.
Rule 3(d) of the North Carolina Rules of Appellate Procedure
requires that the notice of appeal filed by the appellant
"designate the judgment or order from which appeal is taken . . .
." In this case, since the notice of appeal was filed prior to the
entry of the 24 July 2006 order, it could not reference that
subsequent order. Dwinnell was, therefore, required to file
another notice of appeal regarding that order. See, e.g.
, In re
, 165 N.C. App. 894, 898, 600 S.E.2d 25, 28 (notice of appeal
from decision on the merits of case did not provide appellate
jurisdiction of subsequent order imposing Rule 11 sanctions when
order not mentioned in notice of appeal), appeal dismissed, disc.
review denied, and cert. denied
, 359 N.C. 189, 607 S.E.2d 271
(2004); Finley Forest Condo. Ass'n v. Perry
, 163 N.C. App. 735,
741, 594 S.E.2d 227, 231 (2004) (although plaintiff filed notice of
appeal referencing underlying judgment, plaintiff "failed to file
notice of appeal from the trial court's order permitting costs to
be taxed against plaintiff; therefore, this Court is without
jurisdiction to consider this issue"); Chee v. Estes
, 117 N.C. App.
450, 452, 451 S.E.2d 349, 351 (1994) ("Plaintiffs' notice of appeal
indicates that an appeal was being taken from the judgment entered
in accordance with the verdict and it cannot be fairly inferredfrom the notice that plaintiffs intended as well to appeal the
denial of their motion for new trial.").
"Without proper notice of appeal, the appellate court acquires
no jurisdiction and neither the court nor the parties may waive the
jurisdictional requirements even for good cause shown under Rule
2." Bromhal v. Stott
, 116 N.C. App. 250, 253, 447 S.E.2d 481, 483
(1994), disc. review denied in part
, 339 N.C. 609, 454 S.E.2d 246,
aff'd in part
, 341 N.C. 702, 462 S.E.2d 219 (1995). We, therefore,
have no jurisdiction to review the 24 July 2006 order.
Statutory and Constitutional Framework
 With respect to the merits, Dwinnell argues strenuously
that we should defer to the legislature and allow it to decide
whether the circumstances of this case warrant application of the
"best interest of the child" standard. The legislature has,
however, already spoken. In N.C. Gen. Stat. § 50-13.2(a) (2007),
the General Assembly provided: "An order for custody of a minor
child entered pursuant to this section shall award the custody of
such child to such person, agency, organization or institution as
will best promote the interest and welfare of the child." In other
words, the General Assembly has determined that it is the public
policy of this State that the "best interest of the child" standard
shall apply whenever custody is sought regardless of the
relationship of the recipient of custody to the child. See Price
346 N.C. at 81, 484 S.E.2d at 535 (observing that, in North
Carolina, statutes require courts "to base custody decisions solely
upon the best interest of the child"). Rather than a question of legislative intent or State public
policy, this appeal primarily presents a question of constitutional
law. As our Supreme Court stated in Price
: "The question now
before us is whether, under the facts of this case, the trial court
was required to hold that defendant's constitutionally protected
interest in the companionship, custody, care, and control of her
child must prevail or whether the statutorily prescribed 'best
interest of the child' test should have been applied to determine
at 74, 484 S.E.2d at 531.
"It has long been understood that it is the duty of the courts
to determine the meaning of the requirements of our Constitution."
Leandro v. State
, 346 N.C. 336, 345, 488 S.E.2d 249, 253 (1997).
Thus, it is our responsibility to determine under what
circumstances the federal and state constitutions override the
General Assembly's determination that "the best interest of the
child" standard should apply in all custody determinations.
In Petersen v. Rogers
, 337 N.C. 397, 445 S.E.2d 901 (1994),
our Supreme Court first addressed the impact of Stanley v.
, 405 U.S. 645, 31 L. Ed. 2d 551, 92 S. Ct. 1208 (1972), on
custody determinations in North Carolina. The Court noted
's holding, based on the Due Process Clause, that "'[i]t is
cardinal with us that the custody, care and nurture of the child
reside first in the parents, whose primary function and freedom
include preparation for obligations the state can neither supply
nor hinder.'" 337 N.C. at 400-01, 445 S.E.2d at 903 (emphasis
omitted) (quoting Stanley
, 405 U.S. at 651, 31 L. Ed. 2d at 559, 92S. Ct. at 1213). Based on this principle, the Court held "that
absent 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." Id.
at 403-04, 445 S.E.2d at 905. Because
the trial court in that case had made no finding that the natural
parents were unfit or had neglected their child's welfare, the
trial court "could not award custody to anyone other than [the
at 404, 445 S.E.2d at 905.
Our Supreme Court revisited legal parents' constitutional
rights in Price
. The Court noted that "[i]t was unnecessary in
to articulate anything more than general constitutional
, 346 N.C. at 73, 484 S.E.2d at 531. The Court
explained that "[i]n Petersen
, this Court held that natural parents
have a constitutionally protected interest in the companionship,
custody, care, and control of their children" and that "this
interest must prevail in a custody dispute with a nonparent, absent
a showing of unfitness or neglect." Id.
at 72, 484 S.E.2d at 530.
, however, addressed "whether other circumstances can require
that interest to yield to the 'best interest of the child' test
prescribed by N.C.G.S. § 50-13.2(a)." Id.
The Court began its discussion of those "other circumstances"
by noting that "[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 apresumption that he or she will act in the best interest of the
at 79, 484 S.E.2d at 534 (citing Lehr v. Robertson
463 U.S. 248, 77 L. Ed. 2d 614, 103 S. Ct. 2985 (1983)). Based on
this principle, the Court articulated the following test:
[T]he 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
The Court declined to specify the universe of conduct that
would "constitute conduct inconsistent with the protected status
parents may enjoy," but rather directed that a parent's conduct "be
viewed on a case-by-case basis." Id.
Where a trial court finds
conduct inconsistent with the parent's constitutionally-protected
status, "custody should be determined by the 'best interest of the
child' test mandated by statute." Id.
, 484 S.E.2d at 535.
Subsequently, the Supreme Court clarified that "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 v. Tessener
, 354 N.C. 57, 63, 550
S.E.2d 499, 503 (2001).
As in Price
, we are, therefore, required to consider whether
the trial court's findings, to the extent based on clear and
convincing evidence, support its conclusion of law that Dwinnell"has acted inconsistent with her paramount parental right," making
the "best interest of the child" standard applicable. In doing so,
we must follow the Supreme Court's mandate that "[s]uch conduct
would, of course, need to be viewed on a case-by-case basis . . .
, 346 N.C. at 83, 484 S.E.2d at 537.
We note that because this case involves questions of custody
only, it does not present the issue whether a former domestic
partner may acquire the status of a legal parent. Therefore, we
decline to address the doctrine of parent by estoppel adopted in
Likewise, we find immaterial Dwinnell's arguments that she and
Mason could not marry, and Mason could not adopt the child under
North Carolina law. We cannot improve on the Pennsylvania Supreme
Court's explanation as to why "the nature of the relationship" has
no legal significance to the issues of custody and visitation: "The
ability to marry the biological parent and the ability to adopt the
subject child have never been and are not now factors in
determining whether the third party assumed a parental status and
discharged parental duties. What is relevant, however, is the
method by which the third party gained authority to do so
, 567 Pa. 222, 232, 786 A.2d 913, 918-19 (2001) (emphasis
 Before turning to the constitutional question, we first
address Dwinnell's related argument that Mason lacked standing tobring a custody action and that the trial court, therefore, erred
in denying her motion to dismiss.
(See footnote 2)
Standing in custody disputes is
governed by N.C. Gen. Stat. § 50-13.1(a) (2007), which states that
"[a]ny parent, relative, or other person
, agency, organization or
institution claiming the right to custody of a minor child may
institute an action or proceeding for the custody of such child .
. . ." N.C. Gen. Stat. § 50-13.1(a) (emphasis added).
Nevertheless, as with N.C. Gen. Stat. § 50-13.2, our courts have
concluded that the federal and state constitutions place
limitations on the application of § 50-13.1.
As this Court explained in Ellison v. Ramos
, 130 N.C. App.
389, 392, 502 S.E.2d 891, 893, appeal dismissed and disc. review
, 349 N.C. 356, 517 S.E.2d 891 (1998), despite the statute's
"broad language, in the context of a third party seeking custody of
a child from a natural (biological) parent, our Supreme Court has
indicated that there are limits on the 'other persons' who can
bring such an action." A conclusion otherwise "'would conflict
with the constitutionally-protected paramount right of parents to
custody, care, and control of their children.'" Id.
at 393, 502S.E.2d at 893 (quoting Petersen
, 337 N.C. at 406, 445 S.E.2d at
, this Court concluded that "the relationship
between the third party and the child is the relevant consideration
for the standing determination." Id.
at 394, 502 S.E.2d at 894.
As a result, "a third party who has no relationship with a child
does not have standing under N.C. Gen. Stat. § 50-13.1 to seek
custody of a child from a natural parent." Id.
On the other hand,
the Court held "that a relationship in the nature of a parent and
child relationship, even in the absence of a biological
relationship, will suffice to support a finding of standing." Id.
See also id.
at 395, 502 S.E.2d at 895 (declining to draw a bright
line, but rather "confin[ing] our holding to an adjudication of the
facts of the case before us: where a third party and a child have
an established relationship in the nature of a parent-child
relationship, the third party does have standing as an 'other
person' under N.C. Gen. Stat. § 50-13.1(a) to seek custody").
This test has since been applied in Seyboth v. Seyboth
N.C. App. 63, 554 S.E.2d 378 (2001). Even though the Court held
that the trial court erred in awarding visitation to a stepfather
based on the "best interest of the child" test without first making
the findings mandated by Petersen
, 147 N.C. App. at 68-
69, 554 S.E.2d at 382, the Court nonetheless held that the
stepfather had standing to seek visitation rights under N.C. Gen.
Stat. § 50-13.1 because he had a parent-child relationship with his
at 65-66, 554 S.E.2d at 380-81. There can be no serious dispute that Mason established that
she had standing under N.C. Gen. Stat. § 50-13.1, as limited by
. In her complaint, Mason alleged that she and Dwinnell
jointly raised the child; they entered into an agreement in which
they each acknowledged that Mason was a de facto
parent and had
"formed a psychological parenting relationship with the parties'
child;" and "[t]he minor child has lived all his life enjoying the
equal participation of both [Mason] and [Dwinnell] in his emotional
and financial care and support, guidance and decision-making."
These allegations are sufficient under Ellison
to support the trial
court's denial of Dwinnell's motion to dismiss for lack of
The trial court's 1 June 2006 order included numerous findings
of fact not challenged on appeal that establish that Mason had a
relationship in the nature of a parent-child relationship,
including: "Throughout the child's life, [Mason] has provided care
for him, financially supported him, and been an integral part of
his life such that the child has benefited from her love and
affection, caretaking, emotional and financial support, guidance,
and decision-making." Other unchallenged findings reveal that this
relationship was presented to friends, family, and schools as one
of parent and child.
No reasonable basis exists to contend that Mason fails to meet
the standard set forth in Ellison
. Thus, the trial court properly
concluded in its 1 June 2006 order that Mason "has standing to
pursue custody of the minor child." See also
3 Suzanne Reynolds,Lee's North Carolina Family
Law § 13.4.c.ii, at 13-21 (5th ed.
2002) ("The plain language of the North Carolina statute on
standing appears to align the state with broad discretion and a
lenient standing requirement even against a parent.").
Dwinnell's Constitutionally-Protected Interest
 We next turn to the question whether the district court's
findings of fact are sufficient to support its conclusion of law
that Dwinnell acted in a manner inconsistent with her
constitutionally-protected paramount interest in the companionship,
custody, care, and control of her child. Under our standard of
review in custody proceedings, "the trial court's findings of fact
are conclusive on appeal if there is evidence to support them, even
though the evidence might sustain findings to the contrary."
Owenby v. Young
, 357 N.C. 142, 147, 579 S.E.2d 264, 268 (2003).
Whether those findings of fact support the trial court's
conclusions of law is reviewable de novo. Hall v. Hall
, 188 N.C.
App. 527, 530, 655 S.E.2d 901, 904 (2008).
Dwinnell first argues that only conduct that would support a
termination of parental rights can meet the requirements of Price
This contention was rejected by our Supreme Court in David N. v.
, 359 N.C. 303, 608 S.E.2d 751 (2005).
In David N.
, the trial court had found that the father was a
fit and proper person to care for his child, but nonetheless also
found that the father had acted inconsistent with his
constitutionally-protected status. This Court reversed the trial
court's ruling on the grounds that the "finding of [defendant's]fitness is inconsistent with the conclusion of law that he not be
afforded his constitutional right to parent his child." David N.
v. Jason N.
, 164 N.C. App. 687, 690, 596 S.E.2d 266, 268 (2004).
The Supreme Court reversed, holding:
It is clear from the holdings of
, and Adams
that a natural
parent may lose his constitutionally protected
right to the control of his children in one of
two ways: (1) by a finding of unfitness of the
natural parent, or (2) where the natural
parent's conduct is inconsistent with his or
her constitutionally protected status.
359 N.C. at 307, 608 S.E.2d at 753. Because of the disjunctive
nature of the test, the Court held "that the trial court's finding
of [the natural father]'s fitness in the instant case did not
preclude it from granting joint or paramount custody to [the
child's grandparents], based upon its finding that [the father]'s
conduct was inconsistent with his constitutionally protected
In this case, the trial court specifically found that Dwinnell
"is a fit and proper person to exercise legal and physical custody
of the minor child." Therefore, under David N.
, the question is
whether Dwinnell's conduct was "inconsistent with . . . her
constitutionally protected status." Id.
Our Supreme Court in Petersen
defined that status as the
"paramount right of parents to custody, care, and control of their
children." 337 N.C. at 403-04, 445 S.E.2d at 905. Most recently,
the United States Supreme Court has held: "[I]t cannot now be
doubted that the Due Process Clause of the Fourteenth Amendment
protects the fundamental right of parents to make decisionsconcerning the care, custody, and control of their children."
Troxel v. Granville
, 530 U.S. 57, 66, 147 L. Ed. 2d 49, 57, 120 S.
Ct. 2054, 2060 (2000).
(See footnote 3)
Thus, the question becomes more
specifically articulated: Did the legal parent act inconsistently
with her fundamental right to custody, care, and control of her
child and her right to make decisions concerning the care, custody,
and control of that child?
The district court made findings of fact unchallenged on
appeal that Dwinnell and Mason jointly decided to create a family
took steps to identify Mason as a parent of the
child, including attempting to obtain sperm with physical
characteristics similar to Mason, using both parties' surnames to
derive the child's name, allowing Mason to participate in the
pregnancy and birth, holding a baptismal ceremony at which Mason
was announced as a parent and her parents as grandparents, and
designating Mason as a parent of the child on forms and to
teachers. Indeed, Dwinnell has stipulated that "[a]fter the child's
birth, he lived with both parties who were acting as a family
unit." They remained together as a family for four years. Even
after Dwinnell and Mason's relationship ended, Dwinnell allowed
Mason to have the functional equivalent of joint custody for a
The findings of fact also reveal that Dwinnell and Mason
functioned as if both were parents, with Dwinnell agreeing to allow
Mason to declare the child as a dependent on her tax returns and
the parties sharing caretaking and financial responsibilities for
the child. The court found, without challenge by Dwinnell, that
Dwinnell "encouraged, fostered, and facilitated the emotional and
psychological bond between the minor child and [Mason]" and that
"[t]hroughout the child's life, [Mason] has provided care for him,
financially supported him, and been an integral part of his life
such that the child has benefited from her love and affection,
caretaking, emotional and financial support, guidance, and
decision-making." As a result, Mason became "the only other adult
whom the child considers a parent . . ." Although Dwinnell
assigned error to this latter finding of fact, it is supported by
clear and convincing evidence and, therefore, is binding.
Moreover, the trial court found _ again, in findings not
challenged on appeal _ that Dwinnell chose to share her decision-
making authority with Mason, including decisions on godparents, the
child's name, whether the child should attend private school, and
the child's extracurricular activities. Further, Dwinnell grantedMason a medical power of attorney, allowing Mason to participate in
medical decisions regarding the child and, indeed, both Dwinnell
and Mason signed a "consent form for the child to have therapeutic
intervention at Developmental Therapy Associates." In the
"Parenting Agreement," Dwinnell even agreed that Mason should
participate in making "all major decisions regarding their child."
The findings of fact also establish that Dwinnell intended
that this parent-like relationship be a permanent relationship for
her child. The district court, in reaching its decision, pointed
to the Parenting Agreement signed by Dwinnell and Mason when the
child was three years old. The district court found that Dwinnell
had an opportunity to review the agreement and executed it before
a notary public. Although Dwinnell points to her testimony that
she did not voluntarily enter into the agreement, it was for the
district court to decide what credibility and weight to give that
testimony. Phelps v. Phelps
, 337 N.C. 344, 357, 446 S.E.2d 17, 25
(1994). In that document, Dwinnell asserted that she and Mason had
committed to "jointly parent" the child; that Dwinnell would
consent to Mason's adoption of the child if allowed by North
Carolina law; that "although [Mason] is not the biological mother,
she is a de facto
parent who has and will provide the parties'
child with a stable environment and she has formed a psychological
parenting relationship with the parties' child;" that the child's
relationship with Mason "should be protected and promoted to
preserve the strong emotional ties that exist between them;" and
that the purpose of the document was to make provisions for thecontinuation of the relationship should Dwinnell and Mason cease to
While Dwinnell argues vigorously that the Parenting Agreement
is unenforceable, the district court was not required to address
that issue and did not do so. Thus, the issue is also not before
this Court. Dwinnell mistakes the significance of the document.
The district court was not enforcing any agreement, but rather
relied upon the agreement as a manifestation of Dwinnell's intent
to create a permanent family unit involving two parents and a child
that would continue even if the relationship between Dwinnell and
Mason did not. Phrased differently, the assertions in the document
constitute admissions by Dwinnell regarding her intentions and
conduct in creating a permanent parent-like relationship between
Mason and her biological child.
(See footnote 4)
We believe these circumstances are analogous to those in
, in which the plaintiff, a man who had previously lived with
the child's mother, sought custody. In Price
, the biological
mother represented to her child and others, including the
plaintiff, that he was the child's father even though he was not.
346 N.C. at 83, 484 S.E.2d at 537. According to the Supreme Court,
"[s]he chose to rear the child in a family unit with [the]
plaintiff being the child's de facto
"created" a "family unit" that included a third person and the
In contrast to this case, however, the mother in Price
relinquished all custody to the plaintiff for a period of time.
The parties disputed "whether defendant's voluntary relinquishment
of custody to plaintiff was intended to be temporary or indefinite
and whether she informed plaintiff and the child that the
relinquishment of custody was temporary." Id.
This is an important factor to consider, for,
if [the mother] had represented that [the
plaintiff] was the child's natural father and
voluntarily had given him custody of the child
for an indefinite period of time with no
notice that such relinquishment of custody
would be temporary, [the mother
] would have
not only created the family unit that
plaintiff and the child have established, but
also induced them to allow that family unit to
flourish in a relationship of love and duty
with no expectations that it would be
(emphasis added). If, however, the parties agreed that the
plaintiff would have custody for only a temporary period of time,the mother "would still enjoy a constitutionally protected status
absent other conduct inconsistent with that status." Id.
Court, therefore, remanded for further findings of fact.
While this case does not involve the biological mother's
leaving the child in the care of a third person, we still have the
circumstances of Dwinnell's intentionally creating a family unit
composed of herself, her child and, to use the Supreme Court's
words, a "de facto
Indeed, as occurred in Price
a period of time, they all lived together as a family and Dwinnell
led her child to believe that Mason was one of his parents. Even
though Dwinnell did not completely relinquish custody, she fully
shared it with Mason, including sharing decision-making,
caretaking, and financial responsibilities for the child. And, in
contrast to Price
, the findings establish that Dwinnell intended _
during the creation of this family unit _ that this parent-like
relationship would be permanent, such that she "induced [Mason and
the child] to allow that family unit to flourish in a relationship
of love and duty with no expectations that it would be terminated."
Ultimately, Dwinnell succeeded: the district court found that
Mason and the child forged a strong parent-child bond.
As the South Carolina Court of Appeals has recognized: "[W]hen
a legal parent invites a third party into a child's life, and that
invitation alters a child's life by essentially providing him with
another parent, the legal parent's rights to unilaterally sever
that relationship are necessarily reduced.
" Middleton v. Johnson
369 S.C. 585, 597, 633 S.E.2d 162, 169 (S.C. Ct. App. 2006)(emphasis added). "A parent has the absolute control and ability
to maintain a zone of privacy around his or her child. However, a
parent cannot maintain an absolute zone of privacy if he or she
voluntarily invites a third party to function as a parent to the
Similarly, the New Jersey Supreme Court has held: "[A] parent
has the absolute ability to maintain a zone of autonomous privacy
for herself and her child. However, if she wishes to maintain that
zone of privacy she cannot invite a third party to function as a
parent to her child and cannot cede over to that third party
parental authority the exercise of which may create a profound bond
with the child." V.C. v. M.J.B.
, 163 N.J. 200, 224, 748 A.2d 539,
552, cert. denied
, 531 U.S. 926, 148 L. Ed. 2d 243, 121 S. Ct. 302
Thus, like all parents, Dwinnell had the constitutionally-
protected right to "maintain a zone of privacy" around her and her
Indeed, since no biological father was present,
Dwinnell exercised exclusive and autonomous parental authority in
relation to her child. She nonetheless voluntarily chose to invite
Mason into that relationship and function as a parent from birth
on, thereby materially altering her child's life. She gave up her
right to unilaterally exclude Mason (or unilaterally limit contact
with Mason) by choosing to cede to Mason a sufficiently significant
amount of parental responsibility and decision-making authority to
create a permanent parent-like relationship with her child. The New Jersey Supreme Court's opinion in V.C.
What we have addressed here is a specific set
of circumstances involving the volitional
choice of a legal parent to cede a measure of
parental authority to a third party; to allow
that party to function as a parent in the day-
to-day life of the child; and to foster the
forging of a parental bond between the third
party and the child. In such circumstances,
the legal parent has created a family with the
third party and the child, and has invited the
third party into the otherwise inviolable
realm of family privacy. By virtue of her own
actions, the legal parent's expectation of
autonomous privacy in her relationship with
her child is necessarily reduced from that
which would have been the case had she never
invited the third party into their lives.
163 N.J. at 227, 748 A.2d at 553-54. The court concluded: "Most
important, where that invitation and its consequences have altered
her child's life by essentially giving him or her another parent,
the legal parent's options are constrained. It is the child's best
interest that is preeminent as it would be if two legal parents
were in a conflict over custody and visitation." Id.
, 748 A.2d at
554. See also T.B.
, 567 Pa. at 232, 786 A.2d at 919 ("[A]
biological parent's rights do not extend to erasing a relationship
between her partner and her child which she voluntarily created and
actively fostered simply because after the parties' separation she
regretted having done so." (internal quotation marks omitted)).
We stress that the cases that we have cited from other
jurisdictions have each applied, as we do, a test applicable
generally to third parties seeking custody of a child contrary to
the wishes of the legal parent. See V.C.
, 163 N.J. at 205-06, 748A.2d at 542 ("Although the case arises in the context of a lesbian
couple, the standard we enunciate is applicable to all persons who
have willingly, and with the approval of the legal parent,
undertaken the duties of a parent to a child not related by blood
or adoption."); T.B.
, 567 Pa. at 232, 233, 786 A.2d at 918, 919
(holding that in determining whether a former domestic partner had
standing to seek visitation, "a well-established common law
doctrine" applied and "the nature of the relationship between
Appellant and Appellee has no legal significance"); Middleton
S.C. at 593, 633 S.E.2d at 167 ("In this case, we are asked to
determine what legal standard applies to a third party's claim for
visitation of a non-biological child for whom he claims to have
functioned as a psychological parent.").
In sum, we conclude that the district court's findings of fact
establish that Dwinnell, after choosing to forego as to Mason her
constitutionally-protected parental rights, cannot now assert those
rights in order to unilaterally alter the relationship between her
child and the person whom she transformed into a parent. Her
choice does not mean that Mason is entitled to the rights of a
legal parent, but only that a trial court may apply the "best
interest of the child" standard in considering Mason's request for
custody, including visitation. See, e.g.
at 599-600, 633
S.E.2d at 170 (holding third party entitled to visitation when
mother invited him "to act as a father," child lived with third
party at least half of the week for most of his life, and motherceded over large part of parental responsibilities, thereby
fostering parent-child bond between third party and child).
(See footnote 5)
 Dwinnell, however, argues that because of the absence of
abandonment, her conduct can only be described as "good acts,"
enriching her child's life by involving Mason as a parental figure.
She contends that the Supreme Court in Price
did not contemplate
that "good acts" could be inconsistent with a parent's
Neither our Supreme Court nor the United States Supreme Court
has yet required a showing of "bad acts" as opposed to conduct
inconsistent with the parent's paramount constitutional interest.
, the United States Supreme Court plurality expressly
declined to decide "whether the Due Process Clause requires all
nonparental visitation statutes to include a showing of harm or
potential harm to the child as a condition precedent to granting
, 530 U.S. at 73, 147 L. Ed. 2d at 61, 120 S.
Ct. at 2064. Instead, the plurality reasoned that the more neutral
concept of "special factors
. . . might justify the State's
interference with [the biological mother's] fundamental right tomake decisions concerning the rearing" of her children. Id.
147 L. Ed. 2d at 58, 120 S. Ct. at 2061 (emphasis added).
When examining a legal parent's conduct to determine whether
it is inconsistent with his or her constitutionally-protected
status, the focus is not on whether the conduct consists of "good
acts" or "bad acts." Rather, the gravamen of "inconsistent acts"
is the volitional acts of the legal parent that relinquish
otherwise exclusive parental authority to a third party.
In any event, Dwinnell has misunderstood the nature of her
conduct, as found by the district court, and its consequences. As
itself implicitly recognized in the language quoted above,
encouraging a child to view a third person, with whom the child
lives, as a parent and to develop a parent-child bond with that
person with the expectation that it would continue and then
severing that relationship cannot be viewed as benign conduct.
, 369 S.C. at 599, 633 S.E.2d at 169
(acknowledging risk of emotional harm to child in severance of
parent-like relationship and stressing that "South Carolina has
long recognized the importance of the degree of attachment, echoed
by other jurisdictions, between a child and a third-party in making
a custody determination between a biological parent and the third
party"). Indeed, the United States Supreme Court in Smith v. Org.
of Foster Families for Equal. & Reform
, 431 U.S. 816, 844, 53 L.
Ed. 2d 14, 35, 97 S. Ct. 2094, 2109-10 (1977) (internal quotation
marks and citations omitted), has stressed that "the importance of
the familial relationship, to the individuals involved and to thesociety, stems from the emotional attachments that derive from the
intimacy of daily association, and from the role it plays in
promot[ing] a way of life through the instruction of children, as
well as from the fact of blood relationship."
Our Supreme Court recognized these effects 50 years ago in In
, 247 N.C. 273, 280, 101 S.E.2d 16, 21-22 (1957), when it
held that the legal right of a parent to custody may yield to the
interests of the child when the parent
has voluntarily permitted the child to remain
continuously in the custody of others in their
home, and has taken little interest in [the
child], thereby substituting such others in
his own place, so that they stand in loco
to the child, and continuing this
condition of affairs for so long a time that
the love and affection of the child and the
foster parents have become mutually engaged,
to the extent that a severance of this
relationship would tear the heart of the
child, and mar his happiness.
(Emphasis added.) The Court explained that the biological father,
"having permitted" the family unit of his child and his grandmother
to develop, "'claims the right, because he is the father, to sever
the ties which bind this child to the respondent.'" Id.
101 S.E.2d at 22 (quoting Merchants v. Bussell
, 139 Me. 118, 124,
27 A.2d 816, 819 (1942)). The Court held: "'In this instance the
welfare of the child is paramount. The dictates of humanity must
prevail over the whims and caprice of a parent
added) (quoting Merchants
, 139 Me. at 124, 27 A.2d at 819).
Although Dwinnell, in contrast to the father in Gibbons
not relinquish custody completely to another, her conduct had
precisely the same potential to "tear the heart of the child, andmar his happiness." Id.
at 280, 101 S.E.2d at 22. Under these
circumstances, the district court could properly conclude, as it
did, that Dwinnell acted in a manner inconsistent with her
constitutionally-protected paramount interest in the companionship,
custody, care, and control of her child. The proper standard for
determining custody was, therefore, the "best interest of the
Although some courts in other states have attempted to create
a bright-line test for when the "best interest of the child"
standard should apply as between a legal parent and a third party,
our Supreme Court, in Price
, stressed that a parent's conduct
"need[s] to be viewed on a case-by-case basis." 346 N.C. at 83,
484 S.E.2d at 537. See also id.
at 79, 484 S.E.2d at 534-35
("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."). This Court, in turn,
in discussing standing to seek custody, similarly observed: "After
due consideration, it would seem to us that at this time drawing a
bright line for all such cases would be unwise." Ellison
, 130 N.C.
App. at 395, 502 S.E.2d at 895. We explained that "any rule
crafted now would face a serious risk of stumbling upon unforeseen
pitfalls" and, therefore, we "confine[d] our holding to an
adjudication of the facts of the case before us . . . ." Id.
Best Interest of the Child
 Dwinnell argues alternatively that if the "best interest
of the child" standard does apply, the district court erred in
granting permanent joint custody to both parties because the best
interests of her child were not served by such an award. It is
well established that the district court's determination regarding
the best interest of the child will not be disturbed unless there
is an abuse of discretion. Dixon v. Dixon
, 67 N.C. App. 73, 76,
312 S.E.2d 669, 672 (1984). As this Court has explained:
[T]rial courts have the duty to decide
domestic disputes, guided always by the best
interests of the child and judicial
objectivity. To that end, trial courts
possess broad discretion to fashion custodial
and visitation arrangements appropriate to the
particular, often difficult, domestic
situations before them. The decision of the
trial judge, who sees and hears the witnesses
and observes their demeanor, ought not to be
upset on appeal absent a clear showing of
abuse of that discretion.
Glesner v. Dembrosky
, 73 N.C. App. 594, 598, 327 S.E.2d 60, 63
(1985) (internal citations omitted).
We first note that in challenging the trial court's
application of the "best interest of the child" standard, Dwinnell
has failed to cite any authority in support of her position.
"Assignments of error not set out in the appellant's brief, or in
support of which no reason or argument is stated or authority
, will be taken as abandoned." N.C.R. App. P. 28(b)(6)
(emphasis added). Even if we consider Dwinnell's unsupported
argument, it is without merit.
Dwinnell first asserts: "Given the fact that this case deals
with a natural parent and a third party, the court finding that thenatural parent had always been a fit parent, and finding that the
natural parent always put the best interest of the child first, the
court should not have ordered the natural parent to have joint
legal custody of the minor child with [Mason]." This contention
simply represents a rephrasing of Dwinnell's initial contention
that as between a fit parent and a third party, the district court
may not award custody to the third party over the objection of the
natural parent. Because we have held that the district court could
properly apply the "best interest of the child" standard, the court
was entitled to decide whether joint custody between Dwinnell and
Mason was in the child's best interests. While the district court
could conclude that Dwinnell's fitness warranted that she have sole
custody, it was not required to do so if the evidence indicated
that the child's best interests required a different result.
Dwinnell next asserts that "[t]he court entered no findings to
support it's [sic] conclusion that a joint physical custodial
schedule that provided week to week visitation was in the best
interest of the minor child." Immediately following this
statement, Dwinnell points to evidence supporting her position and
argues that the trial court "did not address [this evidence] in the
findings of fact and still concluded that a joint physical
custodial schedule that provided week to week visitation with the
parties was in the best interest of the child."
Significantly, Dwinnell does not acknowledge that the district
court's "best interests" determination is reviewed for an abuse of
discretion. Contrary to Dwinnell's contention, our review of thedistrict court's order indicates that it is supported by sufficient
findings of fact. The court found that the child considers Mason
to be a parent; that an emotional and psychological bond exists
between the child and Mason; that the child "has benefited from
[Mason's] love and affection, caretaking, emotional and financial
support, guidance, and decision-making"; that one therapist
concluded from his discussions with the child that he "wished to
maintain equal time with both parties, but preferred to remain at
one house for an entire week and have a midweek dinner visit with
the other party"; that the court adopted a temporary custody
schedule consistent with this expressed desire; and that from the
rendering of the temporary joint custody decision in December 2004
through the permanent custody decision in November 2005, the
parties had been following the alternating weekly custodial
The court also found that during that period, "[a]ll of the
child's end of year progress reports from his teachers at Carolina
Friends School show that the child is performing well in all areas,
including academically, socially and emotionally." In addition,
the court found: "The minor child has been participating in therapy
with Dr. Sortisio since the spring of 2005. The Court finds Dr.
Sortisio's testimony that the child is doing well with an
alternating custodial schedule credible as well as her conclusion
that the child's previous signs of distress have greatly
diminished." These findings of fact are sufficient to support the district
court's conclusions that (1) "[i]t is in the best interest of the
minor child that the parties be granted permanent joint legal and
physical custody of the minor child;" and (2) that the parties
should alternate custody on a weekly basis. Dwinnell has not
argued that these findings of fact are unsupported by evidence; the
mere fact that contrary evidence may exist does not justify
(See footnote 6)
Dwinnell makes no other specific argument regarding the
district court's award of joint custody and, therefore, has
presented no persuasive basis for overturning the district court's
Although this appeal arises in the context of a same-sex
domestic partnership, it involves only the constitutional standards
applicable to all custody disputes between legal parents and third
parties. We simply apply the law as set forth by our Supreme Court
, consistent with the holdings of the United States Supreme
Court. Courts do not violate a parent's constitutionally-protected
interest by respecting the parent-child relationships that the
legal parent _ in accordance with her constitutional rights _
voluntarily chose to create.
We hold, under the circumstances of this case, as found by the
district court, that Dwinnell made the choice, with respect to
Mason's relationship to her child, to act in a manner inconsistentwith her constitutionally-protected right to custody, care, and
control of her child and her right to exclusively make decisions
concerning the care, custody, and control of that child. The
district court, therefore, properly concluded it should apply the
"best interest of the child" standard. At that point, it was up to
the parties to establish the best interests of the child. Since
Dwinnell has failed to demonstrate that the district court's "best
interests" determination was an abuse of discretion, we affirm.
Judges BRYANT and STEELMAN concur.