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Non-Parties and Custody Actions

Plaintiff Nigel Williams (“Father”) and Defendant Latoria Johnson (“Mother”) were married on May 1, 2015.  Father and Mother had one child born February 17, 2016.  Father and Mother then separated on April 30, 2016.  On January 17, 2017, Father filed a complaint for child custody.  On April 28, 2017, a custody order was entered granting joint legal custody of the minor child to Father and Mother, primary physical custody to Mother, and secondary physical custody by visitation to Father.

A custody modification order was entered on August 11, 2020, in response to an ex parte motion filed by Mother. The trial court vacated this order on September 1, 2020.  Then, on October 15, 2020, Father filed a motion to modify child custody and a motion for contempt.  An online hearing was held via Webex that lasted a total of thirty-seven minutes.  Linda Key, the minor child’s caretaker, testified that she had been the minor child’s caretaker for nearly three years.  However, Key never intervened in the matter or otherwise joined the case as a party.  Father attempted to present an additional witness after Key, but the trial court refused to hear further testimony.  An order was entered by the trial court on January 14, 2021, finding that both Father and Mother had acted inconsistently with their constitutional right to parent and granting legal and physical custody of the minor child to Key.  Father appealed.


Father made four arguments on appeal, but ultimately, the appellate court held that the trial court had abused its discretion and erred by granting custody of the minor child to Key, who was not a party to the action.  “In awarding custody to a person who is not a party to the action or proceeding, it would be proper and advisable for that person to be made a party to the action or proceeding to the end that the party would be subject to orders of the court.”  In re Custody of Branch, 16 N.C. App. 413, 415, 192 S.E.2d 43, 45 (1972).


During the thirty-seven-minute Webex custody trial, Father testified that Mother had not taken care of the minor child for nearly three years.  The minor child had been left with Key and was doing well developmentally.  However, nothing in the Record on appeal indicated that Key had filed a motion to intervene or otherwise attempted to join the action as a party.  Key also did not join the action on appeal to defend the trial court’s order granting her both physical and legal custody of the minor child.  Therefore, the appellate court vacated the custody order and remanded to the trial court for a new custody hearing.