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Benjamin N. Neece, Attorney, Woodruff Family Law Group

            When analyzing custody, the issue of who has rights to custody of a minor is commonly focused on the biological parents of the child.  In the eyes of the law, under the right circumstances, biological parents may be disfavored in congruence to “third party” individuals who assert rights to custody.  Some of the most common third-party custody claims are, unsurprisingly, asserted from either the paternal or maternal grandparents.  North Carolina and much of the south, is known for having strong family ties and deep communal roots where grandparents often play a large role in raising not only their children, but their children’s children.  These relationships are often supplemental to the relationships between biological parents and their children, but in some situations grandparents end up being the de facto “mommy” and “daddy” to the minor children.  Where biological parents display continued behavior of either unwillingness or inability to effectively parent their children, grandparents step in and seek legal intervention for the sake of the children.

When it comes to the law, courts have a duty to put the best interest of the children above all others.  Under the Constitution of the United States, the biological parents of a minor have a protected interest in the custody, care, and control of their children.  This is an incredibly high bar to overcome for third-party individuals seeking to assert custodial rights in opposition to those possessed by biological parents.  The law provides for a vague and widely discretionary test for resolving custody disputes of this kind.  While the interest of the children are intended to be promoted above all others, biological parents maintain an almost equally powerful interest that will more often than not prevail over that of third-party individuals unless it can be shown that the parents are unfit or have engaged in some “conduct inconsistent with their protected status.”  Courts do not provide a bright line test in determining what conduct constitutes a violation, but some examples are behavior that leads to neglect of the children, abandonment of the children, and at times, the voluntary surrender of custody of the children.  This behavior must have a negative impact on the child or constitute a substantial risk of such impact.

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By: Leesa M. Poag, Attorney, Woodruff Family Law Group

In a typical child custody case, the mother and father of a child are seeking the intervention of the court to settle their dispute over who should be granted custody of their child.  Though this is the situation most often facing family law attorneys throughout the Triad, the cases become more complex when one of the parties seeking custody of a child is not a biological parent of that child.

This is the situation that the North Carolina Supreme Court had to address in 2003 in the case of Owenby v. Young.  In 1989, Fred and Priscilla Young were married, and two children were born thereafter.  Four years after marrying, Fred and Priscilla divorced.  Upon their separation, the former spouses executed a separation agreement that granted Ms. Young primary custody of the minor children, and secondary custody to Mr. Young.

For seven years, the parties acted and shared custody of the children under this agreement.  However, in April of 2000, tragedy struck when Ms. Young was killed in a plane crash.  At this time, the minor children were 10 and 11 years old.  Following Ms. Young’s death, Mr. Young moved the children in with him and began to exercise sole custody of the children.

But this arrangement would not last long.  After the children had lived with their father for a few weeks, Ms. Young’s mother, Priscilla Owenby, filed a complaint with the court seeking custody of the children on both a permanent and ex parte basis.  An order was entered by the court that same day granting temporary custody of the children to Ms. Owenby.  Mr. Young then filed an answer to Ms. Owenby’s complaint and a counterclaim for custody of the children.  The case came on for hearing in the trial court in December of 2000.

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By: Jennifer A. Crissman, Attorney, Woodruff Family Law Group

            As contentious custody cases in the Piedmont progress, it is likely that a parent may be called “unfit.” In a legal context, this word has a specific meaning, and drastic consequences should the court find a parent unfit. In this second installment on standing to apply for custody, we will examine how a parent’s rights are affected when there is an allegation of “unfitness.”

The case of Raynor v. Odom is instructive when trying to determine whether a parent is “unfit.” Raynor v. Odom, 478 S.E.2d 655 (N.C. App. 1996). Raynor was decided several years after Petersen and discusses what analysis the Court should undertake when determining unfitness. The Raynor court held that although there is no specific list of findings that determines a parent is unfit, the court must look at the totality of the circumstances in determining whether a parent can care for the needs of their child.

The minor child in the Raynor case was removed from Plaintiff Mother’s care and temporarily placed with Intervenor Foster. When Foster gained temporary custody, she took the minor child to have a pre-school assessment. At the assessment, it was discovered that the child had an articulation disorder, and was not as advanced or matured as many of the child’s contemporaries.  This fact was supported by the preschool screening report, an articulation evaluation, and a language therapy initial treatment plan. The trial court found that the child’s lack of development was a result of Plaintiff Mother not providing motivation, opportunity, or encouragement for the child’s normal and healthy development.

The trial court went on to catalog facts that demonstrated Plaintiff Mother’s unfitness to care for her child, including:

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By: Jennifer A. Crissman, Attorney, Woodruff Family Law Group

            If you have been involved with a highly contentious custody case in the Triad, you know that family members will start coming out of the woodwork to ask for custody of the minor children. This phenomenon is even more prevalent when the parents are not adequately caring for their children. This multi-part series will examine who can have standing to apply for custody of the minor children under North Carolina law, and the analysis the Court must follow. In part one of our series, we will examine the Constitutional Rights of the biological parents, which is the bedrock for all subsequent analysis by the Court.

The seminal North Carolina case on parents’ constitutional rights is Petersen v. Rogers, 445 S.E.2d 901 (N.C. 1994). At the outset, the Petersen court recognizes that the right to conceive and raise one’s children is an essential basic civil right which is far more precious than property rights. The Court then discusses in depth both the U.S. Supreme Court’s decisions regarding parental rights to custody, as well as North Carolina case law.

With regard to U.S. Supreme Court decisions, the Petersen Court notes that the integrity of the family unit has been recognized as a fundamental right protected by the U.S. Constitution. The Supreme Court has held “It is cardinal with us that the custody, care and nurture of the child reside first in the parents…”. Prince v. Massachusetts, 321 U.S. 158 (1944). This right has been protected both by the Due Process Clause and Equal Protection Clause of the Fourteenth Amendment, as well as under the Ninth Amendment by the U.S. Supreme Court.

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By Carolyn J. Woodruff, North Carolina Family Law Specialist

Winston Salem, North Carolina: Malecek v. Williams (2017)

Derek Williams is a Forsyth County doctor who had an affair apparently, or at least allegedly, with his nurse. Playing doctor-nurse games got them in trouble with the nurse’s husband, Marc Malecek. The nurse’s then-husband Marc sued Derek for alienation of affection and criminal conversation.

What is alienation of affection? This heart balm tort is something like an automobile accident where a marriage is rear-ended. This alienation of affection requires a spouse to prove that he or she had a genuine marital relationship and that marriage relationship was interfered with by a third party paramour, causing damages. What is criminal conversation? That is simpler. That is sex with someone’s spouse creating damages. Frequently the damages might be one dollar, which is required to reward if sex is found with someone else’s spouse. Of course, in North Carolina damages for alienation of affection and criminal conversation has been as much as $30 million.

Interestingly enough, Derek Williams was sued by Marc Malecek in May of 2016. The Honorable Todd Burke dismissed the lawsuit indicating that alienation of affection and criminal conversation were unconstitutional. There had been several other cases wherein judges had found or not found alienation of affection and criminal conversation to be unconstitutional.

For now, the North Carolina Court of Appeals has spoken on the constitutionality of alienation of affection and criminal conversation. These heart balm torts are constitutional, according to Court of Appeals Judge Richard Deitz. Continue reading →

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Dear Carolyn,

I have been reading the horrid stories about children being left in hot cars.  I also have been troubled by my next door neighbor leaving her seven-year-old son alone this summer while she goes to work.  I have seen this mother lock the door when she leaves in the morning with the child apparently inside.  I do think the seven-year-old has a cell phone.  I don’t like this situation for the seven-year-old who just finished first grade. Is there anything I can do?

Danger Lurking Next Door

Dear Danger,

Ohhhhhh! It is a crime for someone to leave a child under eight years of age unattended.  Further, a child under age eight cannot be left locked up, as this is also a crime.  Children under eight years of age must be left with a supervisor of suitable age and discretion.   The parent can and will be prosecuted.  The placement in the law of this statute is interesting as it is presented as a “fire protection” for little children.  However, I do believe that leaving an unattended child under eight in a car would be a crime under this statute as well. (North Carolina General Statutes 14-318.)

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Dear Carolyn,

I know I should have kept my mouth shut during the divorce, but I didn’t. My daughter-in-law ended up with custody (not that it wasn’t somewhat justified), but now she is taking it out on us and won’t let my husband and I see our own grandchildren.  We worked hard and saved all of our lives, and now we have time and enough money for trips to the beach, mountains, even Disney World, and would love to take our grandchildren, but we aren’t even allowed to take them out for ice cream.  As grandparents do we have any rights?

Carolyn Answers….

You are in luck! The judge can help you, in his or her discretion.  The glitter of Disney with your grandchildren may very well be in your future.

North Carolina General Statute 50-13.5(j) covers the rights of custody and visitation of grandparents. You will need to file a motion (a written request to the court filed with the clerk of court) if you cannot obtain the visitation with your grandchildren from one of the parents. Continue reading →

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Dear Carolyn,

I have a two-year-old and a five-year-old, and I am separated from their Father.  I am filing for custody and divorce.  I hear I am going to have to go to mediation with the Father, and I really don’t want to see him. I am not exactly afraid of him, but it sure is unpleasant being around him.  Do I have to go to mediation, really?

Curious

Dear Curious,

You are likely going to have to go to a court ordered session of mediation to see if you can settle custody and visitation of your children with their Father.  Hopefully, the mediation process will end with a settlement and improve the situation with the children’s Father.  Do not worry as you will not

Mediation was added by the legislature to the custody statutes with five aspirational goals: (1) reducing acrimony; (2) developing custody solutions in the best interests of children; (3) providing parents with informed choices; (4) providing a structured, confidential and cooperative facility for discussion of co-parenting; and (5) reducing litigation and litigation of custody cases.

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by Carolyn Woodruff, North Carolina Family Law Specialist

Opioids are the growing problem in family law. Opioids and domestic violence do not mix and yet yield dreadful consequences. From Greensboro, North Carolina, a 28-year-old woman named Marie Aman will spend many years in prison for the death of a man, who may or may not have been her boyfriend.

The problem? She ran over him, and her opioid addiction played into it.

More tragically, she already has two children. What prospects do these two children have? Life in foster care? Being adopted? Hopefully, in prison she will beat her opioid addiction which is very hard to do, but where will her children be while she is in prison? I don’t know anything about her extended family, and perhaps there are fabulous grandparents out there.

For the life of Dona Auzins, her son is dead. Aman ran over the Auzins’ son after what appears to be a domestic dispute. The story of what happened is unclear, but whatever happened, Auzins is dead. He was found on the street having been hit by the automobile driven by Aman. Her story: She put her boyfriend out of her car to walk home. She planned to drive to her own home, and she says she suddenly say Auzins in front of her. He allegedly shouted: “What are you going to do? Run me over?”

The case came on for trial yesterday in Greensboro, North Carolina. Aman took an Alford plea to second-degree murder, which has a minimum sentence of approximately eight years. The Alford plea means she does not admit guilt. She is the only one alive who was there. What she says happened is that she and Auzins argued. Domestic violence. She saw Auzins later in the road in front of her, and she ran over him crushing the right side of his brain. He was delivered to Moses Cone and was brain dead. That’s when his mother found out.

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Leesa M. Poag, Attorney, Woodruff Family Law Group

After the death of their eight-year-old son earlier this year, two parents in Ohio have filed a lawsuit against Cincinnati Public Schools. The child hanged himself with a necktie from his bunk bed, an act that his parents claim was a result of bullying he suffered at his elementary school.  The parents claim that the child was repeatedly bullied at his school, as were several of his fellow classmates.

This is, unfortunately, not the first such lawsuit to arise over the issue of school bullying.  As discussions surrounding bullying are becoming more prominent in our society today, so are parents seeking to recover damages as a result. In 1999, the Supreme Court addressed the issue of school liability in bullying cases.  In the case of Davis v. Monroe County Board of Education, the Supreme Court held that damages were recoverable from a school board in bullying cases, but only if the Plaintiff proves that the school was deliberately indifferent to the bullying.  The Court held that a Plaintiff must show that the harassment was so severe and pervasive that it effectively barred the child from access to educational opportunities. This standard creates an extremely high bar for a plaintiff to meet in a bullying case.

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