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A Clarification on Custody and Visitation

By: Y Michael Yin, JD

Routten v. Routten, ______ N.C. _______ (2020).

Child Custody can be a hotly contested issue in divorce cases with minor children involved. In certain instances, a court can award sole custody to one parent and even deny visitation to the noncustodial parent. That determination is severe and, by law, must be substantiated by a factual basis for the denial. But what basis is required? Below, we discuss how one court did so, and the ensuing legal confusion that required the North Carolina Supreme Court to step in.

(a) Facts: Plaintiff Father and defendant Mother were married and had two children together. They later divorced and filed claims for child custody. At the proceeding for child custody determination, the trial court directed the defendant to undergo a neuropsychological evaluation before an order would be entered. Later, the trial court entered an order for child support and custody that set a temporary schedule for custody and again ordered that defendant undergo a neuropsychological evaluation no later than June 2016. The trial court also ordered for a return hearing in April and a later hearing for the final determination in August. At the August hearing for permanent order, the trial court awarded sole custody to plaintiff. An amended order with more findings of fact and conclusions of law was later entered, granting sole legal and physical custody to plaintiff and denying visitation. Defendant appealed. The Court of Appeals reversed, and the majority agreed that it was a violation of defendant’s Constitutional rights when the trial court denied visitation rights without a determination that defendant was unfit. Plaintiff appealed.

(b) Issue: Did the trial court err when it entered an order denying defendant visitation with the minor children without first finding that defendant was unfit?

(c) Holding: No.

(d) Rationale: Pursuant to N.C.G.S. 50-13.5(i), before a trial judge denies a party the right to visitation, they must first make a written determination that the parent being denied visitation is unfit or that such visitation is not in the best interest of the child. The plain language of the statute makes it clear that a judge must make a written determination for denial of visitation either because a parent is unfit, or that it is not in the best interest of the child. Either determination will suffice. The trial court did exactly that, finding it was against the best interests of the child if defendant had visitation rights at the time. The Supreme Court then dedicated the majority of the opinion on clarifying Moore v. Moore. In Moore, the Court of Appeals 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.” This language, from Petersen v. Rogers, 337 N.C. 397, 403-04, 445 S.E.2d 901, 905 (1994), was incomplete as cited by the Moore Court. Under full context, the Peterson Court established a presumption as between a nonparent and a natural parent in a custody dispute, not as it is here, between two natural parents.

(e) Lessons and Observations:

a. First, denials of visitation rights towards one parent must be substantiated by written findings of either unfitness of the party being denied, or upon findings that it is not in the best interest of the child to have visitation with the party being denied.

b. Second, the presumption favoring the natural parents only exists in custody disputes with nonparents. And in those cases, absent findings that a parent is unfit, or neglect, rights to visitation may not be denied.