There are numerous factors courts must consider when making custody and visitation determinations, but the preeminent factor is the best interest of the child. In some cases, courts may weigh the child’s preference as part of their overall considerations, but this is handled on a case-by-case basis. The child’s age, maturity, and ability to understand the implications of such a decision may impact a court’s willingness to consider the child’s preferences.
Carballo v. Carballo
In Carballo v. Carballo, Plaintiff appealed the trial court’s order granting Defendant permanent primary legal and physical custody of their children and denying her visitation. Specifically, Plaintiff alleged that the trial court denied her visitation without making the necessary findings of fact and by improperly allowing the children to testify whether they wanted to have visitation with her.
The North Carolina Court of Appeals affirmed the lower court’s ruling, based in part on the fact that the trial court had found visitation with Plaintiff was not in the children’s best interests, so any delegation of judicial authority to the children regarding visitation decisions was irrelevant.
Background of the Case
Plaintiff, the mother of the parties’ three children, and Defendant, the children’s father, were divorced and in proceedings over custody and visitation. In December 2018, they were granted joint legal and physical custody, and a parenting coordinator was appointed at that time. In November 2020, Defendant filed for ex parte emergency custody or, alternatively, a temporary parenting arrangement, alleging that Plaintiff had committed physical and emotional abuse of the children. Further, Defendant stated that the children were refusing to go to Plaintiff’s home or participate in the custody/visitation schedule. He sought sole permanent legal and physical custody, and stated the following in support of his motions:
- Plaintiff had yelled at their 11-year-old child about his homework, causing him to cry, shake, and put his fist in his mouth
- When their 14-year-old child tried to intervene, Plaintiff pushed her down forcefully
- Plaintiff then had her boyfriend call the police, who determined there was no immediate threat
- Plaintiff could be heard laughing and taunting the parties’ 17-year-old child while the children were crying
- Plaintiff claimed it was her right to punish the children
Trial Court’s Findings
The trial court granted Defendant emergency custody and limited Plaintiff’s visitation to FaceTime and phone calls.
In April 2021, Plaintiff filed for ex parte emergency custody or, alternatively, a temporary parenting arrangement based on her claims that the children had become more resistant, hostile, and angry toward her and that these attitudes were because of Defendant. Her motion was denied.
In May 2021, the trial court entered a temporary order granting Defendant primary physical custody with visitation every other weekend to Plaintiff. However, the children were unwilling to continue facilitated visits with their mother, and, after numerous hearings, the trial court modified the order to allow the children to determine, with their therapists’ help, what contact or visitation they should have with Plaintiff. Plaintiff appealed.
Appellate Court’s Findings
The appellate court noted the trial court’s findings in support of its decision to not award visitation to Plaintiff, including that forced visitation or contact was not in the children’s best interests. Additionally, the lower court noted the following:
- The parties’ middle child showed symptoms of PTSD
- The youngest child had shown multiple signs of distress, which stopped after visitation with Plaintiff ceased
- The children repeatedly complained about racist and homophobic comments made by Plaintiff, some of which they internalized as they are bi-racial
- Plaintiff was aggressive and argumentative with the professionals throughout the proceedings, which caused the court to believe she also speaks to the children in a similar manner
In some situations, North Carolina courts can consider a mature child’s input or preference when deciding on custody and visitation. However, the Court of Appeals in this case stated that any delegation of authority to the children was irrelevant because the trial court had already decided that visitation with Plaintiff was not in the children’s best interests. The lower court’s ruling was affirmed.