North Carolina Divorce Lawyers BlogDomestic Violence, Child Custody, and Visitation
In Jordao, the North Carolina Court of Appeals reviewed N.C.G.S. § 50-13.2 and how the statute requires the trial court to evaluate all relevant factors, including domestic violence in determining if custody and visitation is in the best interest of a child.
Jordao v. Jordao, No. COA19-858 (N.C. Ct. App. 2020)
(a) Facts: Mother and Father married in Brazil in 2001, had two children, and moved to the United States in January 2016 on a six-month tourist visa. The family remained in the U.S. after the July 2016 expiration of their tourist visas without documentation.
Mother filed a Domestic Violence Protective Order in January 2017 based on allegations of assault, threats, and stalking by the Father. Mother and Father consented to the entry of a DVPO that prevents Father from assaulting, harassing, or threatening the Mother and granting primary custody of the minor children. Law enforcement arrested Father in June 2017 for allegedly violating the DVPO for stalking the Mother at church, a claim the Father denied. After being arrested, the Father was deported to Brazil based on his immigration status.
Mother filed for divorce in July 2018, and Father filed his answer in September 2018, including a Motion to Dismiss, a Motion for Child Custody, and a Motion for a Temporary Parenting Agreement. A Temporary Parenting Agreement was entered by the trial court in January 2019, granting both parties joint legal custody of the children. The trial court awarded the Mother temporary physical custody and the Father visitation in Brazil during the children’s summer and winter school breaks. It also required the Mother to provide weekly email updates on the children and allow phone, email, and text communication between the Father and the children.
Father filed a Motion for Contempt in January 2019, claiming Mother failed to comply with the Order regarding weekly email updates and communication with the minor children. Father filed another Motion for a Temporary Parenting Arrangement. The Mother filed her reply to Father’s motions and included counterclaims for child support, child custody, and attorney fees.
In April 2019, the trial court entered an Order for Permanent custody, awarding the Mother primary legal and physical custody with Father receiving visitation in Brazil. The Order included detailed provisions regarding communication, travel between the United States and Brazil, decision-making, and a custody schedule should the Mother return to Brazil.
(b) Issue: Whether the trial court, in determining that the Father was a fit parent, abused its discretion and whether the trial court abused its discretion in determining that it was in the minor children’s best interest that the Father’s visitation with the minor children occur in Brazil.
(c) Holding: The N.C. Court of Appeals found in applying the factors in N.C.G.S. § 50-13.2 that abuse of discretion by the trial court did not occur in granting visitation in Brazil. The trial court
found that the Father was a fit parent, and visitation was in the minor children’s best interest. The trial court further held that visitation in Brazil was the only reasonable option to the Father. The trial court’s decision complied with N.C.G.S. § 50-13.2(a) by considering the Mother’s safety in its ruling.
(d) Rationale: On appeal, a trial court’s findings of fact are conclusive if supported by substantial evidence; even if sufficient evidence exists to support a contrary finding. Peters v. Pennington, 707 S.E.2d 724, 733 (N.C. Ct. App. 2011). As determined by this Court, substantial evidence is relevant evidence that a reasonable mind would accept as adequate to support a conclusion. Id. at 733. A trial court decision regarding child custody should not be upset on appeal, absent an abuse of discretion. Everette v. Collins, 625 S.E.2d 796, 798 (N.C. Ct. App. 2006).
N.C.G.S. § 50-13.5(i) requires trial judges, before denying reasonable visitation to a parent, make written findings of fact that the parent is unfit and visitation would not be in the best interest of the children. Even with conflicting evidence of Father’s logistical and legal issues and Father’s desire to not be “cut off” from his children, the trial court had substantial evidence to find that the Father was not an unfit caregiver and that visitation would be in the best interest of the children. The trial court, in applying N.C.G.S.§ 50.13.5(i), correctly found that the only reasonable visitation possible with the Father could occur in Brazil.
After finding that visitation with the Father was in the children’s best interest and that the Father was not an unfit parent under N.C.G.S. § 50-13.5(i), the trial court must follow N.C.G.S. § 50-13.2(a) in determining child custody. Mother contends that the trial court’s failure to address the relevant factors of N.C.G.S. §50-13.2(a)-(b) was an abuse of discretion. N.C.G.S. §50-13.2(a) directs the court to consider all relevant factors, including any act of domestic violence between parties, the safety of the child, and the safety of either party from acts of domestic violence by the other party. The court is required to include a written finding of fact showing consideration of each factor and supporting the determination of how the decision would be in the best interest fo the child. N.C.G.S. §50-13.2(b) requires the court, upon finding that domestic violence has occurred, to enter orders that protect both the child and the party that were victims of the violence under N.C.G.S. § 50B-3(a1)(1), (2), and (3).
Under N.C.G.S. §50-13.2(a)-(b), the absence or relocation of a party, with or without the children as a result of domestic violence, shall not be a factor that weighs against the party when determining custody or visitation. The trial court evaluated all relevant factors, including the domestic violence against the Mother and that no domestic violence occurred against the children. The court considered the children’s safety and well-being and what effect visitation n Brazil may have on the children, the immigration status of the children, the children’s school progress, behavior outside of school, and even the safety of the Mother should she return to Brazil. The Mother claimed that the trial court’s decision was contrary to N.C.G.S. § 50-13.2(b) requiring that absence or relocation, with or without the children, due to domestic violence shall not be a factor weighing against the party when determining custody or visitation. This Court held that this language refers to the party who is absent and does not apply to the Mother in this situation, but it would apply to the Father as he relocated to Brazil because of domestic violence. As this language applies to the Father, the trial court was required not to consider the Father’s absence or relocation during the custody and visitation determination.