Sulier v. Veneskey ( 2022 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
2022-NCCOA-658
No. COA21-506, 21-523
Filed 4 October 2022
Davie County, No. 20CVD256
MICHAEL KEITH SULIER, Plaintiff,
v.
TINA BASTIAN VENESKEY, Defendant.
Appeal by defendant from orders entered 23 February 2021 and 3 May 2021
by Judge Mary F. Covington in District Court, Davie County. Heard in the Court of
Appeals 22 March 2022.
Michael Keith Sulier, pro-se, plaintiff-appellee.
Homesley & Wingo Law Group PLLC, by Andrew J. Wingo and Victoria L.
Stout, for defendant-appellant.
STROUD, Chief Judge.
¶1 Defendant-maternal Grandmother appeals the trial court’s orders determining
North Carolina has jurisdiction over the custody of Plaintiff-Father’s minor child and
awarding him full custody. Because we conclude the trial court had subject-matter
jurisdiction under the UCCJEA and its determination Plaintiff-Father is a fit parent
who has not abdicated his constitutional rights to the minor child was supported by
its findings and the evidence, we affirm.
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2022-NCCOA-658
Opinion of the Court
I. Background
¶2 This case involves a custody dispute between Plaintiff Michael Keith Sulier
(“Father”), and Defendant Tina Bastian Veneskey, maternal grandmother
(“Grandmother”) of Andrea,1 who was born in February 2013.2 Father and Andrea’s
late mother (“Mother”) were never married but were living together when Andrea
was born. Father and Mother separated following Andrea’s birth, after which the
record reflects Father and Mother had a “tumultuous relationship” during which they
“broke up a few times and got back together.” During this period of about two years,
Father cared for the child and “did engage in parenting activities such as feeding,
changing and taking care of the child while the mother was at work.” Mother and
Father then permanently separated in 2014; Mother moved away, took Andrea with
her, got married, and changed her last name. Father did not thereafter have contact
with Andrea. The trial court found from Father’s and his mother’s testimony that
Father’s lack of contact with Andrea after the separation was a result of having been
“led to believe by [Mother] and [Grandmother] that they could no longer have
communication with the minor child,” in part due to a no-contact order, “consistent
with the years between 2014-2020.” The trial court found after the no-contact order
1We refer to the minor child by a pseudonym.
2The trial court adjudicated Father as the “biological parent of the minor child” in its 23
February 2021 order. Grandmother has not challenged this ruling on appeal.
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was lifted in 2016, Father and the paternal grandmother “attempted to locate the
minor child through family inquiries and social media,” but Mother “had a different
last name at that point, and they did not know how to find her.” According to
Grandmother, Mother moved at least eight times with the child during the five years
after Mother and Father separated, throughout North Carolina, Michigan, and
Alaska, never staying in one location longer than a year until moving into Mother’s
final home in North Carolina. Grandmother’s pleadings in this action revealed to
Father for the first time Andrea’s previous whereabouts including her return to North
Carolina by August of 2017 and most recently living since October 2018 in a home
with Mother, Mother’s new husband (“Stepfather”), and another child born to Mother
and Stepfather, the minor child’s half-sibling, in Mocksville, North Carolina.
¶3 Mother passed away on 10 May 2020. At this time, Grandmother lived in
Michigan. After Mother’s death, on or about 18 May 2020, Grandmother traveled to
North Carolina and removed Andrea from North Carolina, bringing her to Michigan
to stay with Grandmother and her husband. Grandmother did so without notifying
Father and without his consent and has kept Andrea in Michigan since. At the time
of Mother’s death and at the time this action was filed, Father was residing in Myrtle
Beach, South Carolina. Father also has a son with his girlfriend who he has lived
with “as a family unit” since his son’s birth, and in his briefing on appeal, Father
states he “takes care of his [son’s] needs [and] he wishes to do the same for his
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biological daughter . . . .” Father did not learn of Mother’s passing until discovering
this through a Facebook posting, at which point he “immediately returned to North
Carolina to pick up his daughter.” Father contacted the police, family members, and
neighbors, but was never informed Grandmother took the child to Michigan.
¶4 Grandmother initiated a guardianship proceeding in the Delta County Probate
Court in Michigan soon after arriving there with Andrea, on 29 May 2020,3 and on 30
June 2020 the Michigan court entered an emergency temporary guardianship order.
Father then filed his verified Complaint for Child Custody two weeks later, on 15
July 2020, in Davie County District Court. On 30 July 2020, Grandmother filed an
action for permanent custody in the Michigan State Court. The Delta Probate Court
in Michigan granted temporary guardianship to Grandmother and a telephone
conference was then held between the Honorable Mary Covington and the Honorable
3 Grandmother did not include in the Record on Appeal or in her brief to this Court any
indication as to the date she filed the guardianship proceeding in Michigan after arriving
there with the child on 18 May 2020. We take judicial notice the Michigan Court of Appeals
affirmed the Delta County trial court’s order declining to exercise child-custody jurisdiction
under the UCCJEA on 26 August 2021. See Veneskey v. Sulier, No. 355471, 2021 Mich. App.
LEXIS 5147 at *1–2, 2021 WL 3821012 at *1 (Mich. Ct. App. Aug. 26, 2021), review denied,
967 N.W.2d 71 (Mich. 2021). The Michigan appeal included only the complaint for custody
Grandmother later filed in circuit court. Id., 2021 Mich. App. LEXIS 5147 at *2–3, *14–15,
2021 WL 3821012 at *1, *6. According to the Michigan Court of Appeals’s opinion, “[Andrea]
was removed from North Carolina on May 18, 2020. [Grandmother] filed the[] petition for
guardianship on May 29, 2020. [Grandmother] filed the[] circuit court complaint on July 31,
2020.” Id., 2021 Mich. App. LEXIS 5147 at *8, 2021 WL 3821012 at *4. We additionally note
the trial court’s order here indicated Grandmother filed the permanent-custody action in
Michigan on 30 July 2020 instead of 31 July 2020.
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Opinion of the Court
Perry Lund of the Circuit Court for the County of Delta, Michigan (“UCCJEA
conference”). Following that conference, on 29 October 2020, the Michigan Court
“entered a summary disposition order under MCR 2.116(C)(4), finding that Michigan
is not the home state of the minor child and is an inconvenient forum” and dismissing
Grandmother’s Michigan custody action.
¶5 On 30 September 2020, Grandmother filed a motion to dismiss Father’s
custody complaint and a Motion for UCCJEA Conference and Answer pursuant to
Chapter 50A of the North Carolina General Statutes (“UCCJEA”). Father filed a
verified Reply and Response to Motion to Dismiss, noting the previous UCCJEA
conference held by Judge Covington and Judge Lund. The next day, on 19 November
2020, Father filed a verified Motion to Allow Supplemental Pleading and verified
Supplemental Pleading and Motion in the Cause for an order awarding him
immediate and temporary custody based upon the Michigan Court’s Order declaring
it was not Andrea’s home state. On 27 January 2021, Grandmother filed her verified
Answer and Counterclaims in North Carolina for “permanent primary custody” of
Andrea. The matters were noticed for hearing on 23 February 2021 and came on
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that day before the Honorable Mary Covington in Davie County District Court.4
Judge Lund, in Michigan, also presided virtually at the 23 February 2021 hearing.
¶6 By Order on Jurisdiction entered 23 February 2021, Judge Covington
concluded North Carolina had subject-matter jurisdiction over Andrea’s custody
because North Carolina was her “home state” as defined by the UCCJEA; and, as an
alternative basis for jurisdiction, a parent or person acting as a parent had significant
contacts with North Carolina and North Carolina was a convenient forum for the
custody proceeding. The trial court found as fact Grandmother and her husband
owned real property located in Davie County, where Grandmother previously resided,
and Andrea and Mother were residing in North Carolina continuously for three years
prior to Mother’s passing. The trial court also found for purposes of the UCCJEA
Stepfather “was acting as a parent to [the child] at the time of [Mother’s] death . . .”
and was living in the North Carolina home with Andrea and her half-sibling. Father
filed a verified Motion to Dismiss Grandmother’s Second Answer and Counterclaims
the same day the trial court entered its Order on Jurisdiction.5
4 It appears from the 23 February 2021 hearing transcript there was some question among
the attorneys for the Parties regarding the scope of what was noticed for hearing that day,
but Grandmother has not raised any argument on appeal regarding the notice of hearing.
5 On 24 March 2021, Grandmother filed written Notice of Appeal from the trial court’s 23
February 2021 Order on Jurisdiction.
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Opinion of the Court
¶7 By Temporary Custody Order entered 3 May 2021,6 Judge Covington
reaffirmed North Carolina’s subject-matter jurisdiction over Andrea’s custody and
concluded Father did not abdicate his constitutionally protected rights as a parent,
was fit and proper to have care, custody, and control, and was therefore entitled to
full custody of the child. The trial court dismissed Grandmother’s claim for custody
and ordered Andrea be immediately returned to Father. On 5 May 2021,
Grandmother filed written notice of appeal from the trial court’s custody order.
II. Discussion
¶8 Grandmother makes many arguments on appeal challenging the trial court’s
award of custody to Father and dismissal of her claim for custody. She argues the
conference Judges Covington and Lund held prior to the court’s Order on Jurisdiction
violated the UCCJEA; the trial court erred in concluding North Carolina was
Andrea’s home state, there also existed significant-connection jurisdiction, and North
Carolina was a convenient forum; and the trial court erred in awarding custody to
Father because the evidence she presented established as a matter of law that Father
abdicated his constitutional rights as a parent. Grandmother also takes exception to
6 It is not clear why the order is entitled “Temporary Custody Order,” but the title is not
controlling. The order is in substance a final and appealable order granting Father full
custody of Andrea and dismissing Grandmother’s claim for custody.
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the trial court’s decision not to admit certain evidence from the child’s Michigan
therapist.
A. Standard of Review
¶9 We review de novo a trial court’s conclusion it has subject-matter jurisdiction
over a custody dispute pursuant to the UCCJEA. In re J.H., 244 N.C. App. 255, 260,
780 S.E.2d 228, 233 (2015); see also In re M.R.J., 378 N.C. 648, 2021-NCSC-112, ¶ 19
(“[S]ubject-matter jurisdiction is a question of law . . . .” (quotations and citation
omitted)).
¶ 10 In custody determinations, “the trial court’s findings of fact are conclusive on
appeal if there is evidence to support them, even though the evidence might sustain
findings to the contrary.” Adams v. Tessener, 354 N.C. 57, 63, 550 S.E.2d 499, 503
(2001) (quotations and citations omitted). However, “a trial court’s determination
that a parent’s conduct is inconsistent with his or her constitutionally protected
status must be supported by clear and convincing evidence.” Id.; In re I.K., 377 N.C.
417, 2021-NCSC-60, ¶ 20 (“The trial court’s legal conclusion that a parent acted
inconsistently with his constitutionally protected status as a parent is reviewed de
novo to determine whether the findings of fact cumulatively support the conclusion
and whether the conclusion is supported by clear and convincing evidence.”). “The
trial court’s findings of fact are conclusive on appeal if unchallenged, or if supported
by competent evidence in the record.” In re I.K., ¶ 20 (citations omitted).
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B. Procedure for UCCJEA Conference
¶ 11 We first address Grandmother’s arguments the trial court violated the
UCCJEA in the procedure it followed in communicating with the Michigan Court.
Grandmother argues she suffered “significant harm” as a result of the trial court’s
application of N.C. Gen. Stat. § 50A-110 during its initial phone conference with
Judge Lund.7 That section provides, in part:
(a) A court of this State may communicate with a court in
another state concerning a proceeding arising under [the
UCCJEA].
(b) The court may allow the parties to participate in the
communication. If the parties are not able to participate in
the communication, they must be given the opportunity to
present facts and legal arguments before a decision on
jurisdiction is made.
....
(d) . . . [A] record must be made of a communication under
this section. The parties must be informed promptly of the
communication and granted access to the record.
N.C. Gen. Stat. § 50A-110 (2021).
¶ 12 Grandmother here takes issue with the telephone call Judge Lund and Judge
Covington had during the Michigan proceeding, prior to the North Carolina hearing
7This telephone conference originated in the Michigan proceeding; Michigan has the same
provision in its UCCJEA statute. Compare Mich. Comp. Laws § 722.1110 (2020) with N.C.
Gen. Stat. § 50A-110 (2021).
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regarding jurisdiction. After the telephone conference between Judge Lund and
Judge Covington, the Michigan Court dismissed Grandmother’s Michigan custody
action on the ground Michigan was not Andrea’s home state or a convenient forum.
That call originated with Judge Lund in Michigan based upon the custody proceeding
Grandmother filed in Michigan. Grandmother acknowledges there was also a full
hearing in the North Carolina action on 23 February 2021 “where the Trial Court of
North Carolina, the Circuit Court of Michigan, and the attorneys for both parties
from both states were present,” and at that hearing both Judges “heard from all
attorneys regarding how N.C. Gen. Stat. § 50A-110 was applied . . . and discussed the
procedural history of both the Michigan guardianship action and the North Carolina
custody action.” Grandmother complains the result of the North Carolina hearing
“did not change the outcome” of the Judges’ earlier phone call in the Michigan
proceeding, but that does not change the fact Grandmother had the full UCCJEA
hearing in this North Carolina action. The Judges from both States attended a
hearing in North Carolina and heard and discussed at length counsels’ jurisdictional
arguments, and then the trial court entered an Order on Jurisdiction, and a second
Temporary Custody Order again finding facts affirming its jurisdiction. Any issue
Grandmother takes with the procedure the Michigan Court followed in
Grandmother’s case there would be for the Michigan Courts to decide, and in fact, the
Michigan Court of Appeals affirmed the dismissal of Grandmother’s Michigan child-
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custody proceeding, concluding North Carolina was the child’s home state and
Michigan was an inconvenient forum for her custody determination. See Veneskey,
supra, 2021 Mich. App. LEXIS 5147 at *8-10, 2021 WL 3821012 at *4 (“[A]n
individual who removes a minor child from the home state should not obtain a benefit
between the removal date and date of a filing of a custody petition in Michigan by
claiming that this period destroyed the prior occupancy period and relationship to the
home state.”).
C. Jurisdiction Under UCCJEA
¶ 13 Grandmother contends the trial court erred in its ultimate determination
North Carolina has subject-matter jurisdiction as Andrea’s home state, or in the
alternative, significant-connection jurisdiction. Grandmother argues both
conclusions were erroneous based on the evidence, but she does not challenge any of
the trial court’s findings of fact, so we are bound by these findings. In re K.N., 378
N.C. 450, 2021-NCSC-98, ¶ 17 (“Unchallenged findings are deemed to be supported
by the evidence and are binding on appeal.”).
¶ 14 The trial court made the following findings in support of its determination in
its 23 February 2021 Order on Jurisdiction:
2. The Defendants [(Grandmother and her husband)]
are the maternal grandparents of the minor child and
reside in Michigan, although they own real property
located in Davie County, North Carolina, where the minor
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child was living at the time of biological [M]other’s death.
3. Within moments of the biological [M]other’s death,
[Grandmother] removed the minor child from the
jurisdiction of her home state. The minor child has resided
in North Carolina continuously [from] 2017-2020 when her
[M]other passed away.
4. There is credible evidence that the minor child lived
in multiple places with . . . [Mother]. And although the
minor child was born in the State of Michigan, she resided
in North Carolina continuously for approximately three
years prior to her [M]other’s passing in . . . North Carolina.
5. [Grandmother] has previously resided in Davie
County, North Carolina.
6. [Mother] was residing in North Carolina six months
prior to her death in May 2020. She married and had a
child with [Stepfather]. The minor child has a half-sibling
that currently lives in North Carolina.
7. [Stepfather] . . . was acting as a parent to . . .
[Andrea] at the time of the [M]other’s death and when he
turned the minor child over to [Grandmother]. He
currently still resides in North Carolina.
....
9. Although the child was removed from the state of
North Carolina, she and at least one parent or persons
acting as a parent, have significant contact with the state
of North Carolina.
10. The State of Michigan did assume emergency
temporary jurisdiction for the purposes of establishing a
temporary guardianship when the child was taken to
North Carolina [sic] after the [M]other’s death, by
[Grandmother]. [Father] did not give consent to the child
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being removed from North Carolina.
11. On October 29, 2020, in the Circuit Court for the
County of Delta, in the State of Michigan, the Honorable
Perry Lund entered a summary disposition order . . .
finding that Michigan is not the home state of [Andrea] and
is an inconvenient forum. . . .
12. As of the date of this hearing, Michigan’s only
jurisdiction pertained to the temporary guardianship
ordered by the Delta County Probate Court in Case No. 20-
GM-22549.
....
14. [Father] filed his action for custody in . . . North
Carolina, the child’s home state, on July 15, 2020.
[Grandmother] filed her custody action in Michigan on July
30, 2020.
....
17. The Court has determined that North Carolina has
jurisdiction over the subject matter in the case and
personal jurisdiction over the parties because of
[Grandmother] and the minor child’s significant contacts
within the state of North Carolina.
18. Furthermore, the court finds that North Carolina is
the more convenient forum for the minor child and for
[Father] and at least one contestant has significant
connections within the state of North Carolina.
....
(Parentheticals added). The trial court also made the following relevant findings in
its 3 May 2021 custody order:
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3. At the time of [M]other’s death, the minor child was
residing in Mocksville, NC, in a home owned by
[Grandmother], with her [M]other and her new husband of
less than a year, [Stepfather] . . . .
....
6. Neither party in this action currently reside in the
State of North Carolina, however, after . . . conducting a
jurisdictional hearing with the juvenile Judge in the State
of Michigan, it was determined that North Carolina is the
home state. That jurisdictional ruling is currently on
appeal in Michigan.[8]
7. The Court finds that North Carolina is the home
state of the minor child at the time of the filing of this
action. [Andrea] was living at least six months prior to the
death of her [M]other and prior to the filing of this action
by [Father].
....
9. [Father] learned of [Mother’s death] on the social
media page of a family member of the decedent and he
immediately returned to North Carolina to pick up
[Andrea] . . . .
....
11. The Court finds that within a few days of [Mother’s
death], [Grandmother] came to North Carolina from
Michigan and removed the child from the jurisdiction of
North Carolina and took her back to Michigan. . . . .
8As noted above, the Michigan Court of Appeals affirmed the Delta County trial court’s order
on 26 August 2021. See Veneskey, supra, 2021 Mich. App. LEXIS 5147 at *1–2, 2021 WL
3821012 at *1.
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12. [Grandmother] and [Stepfather] had an attorney
draw up a consent agreement to allow [Grandmother] to
take the child back to Michigan without [Father’s] consent.
....
13. . . . [Father] had family in the area where [Andrea]
was residing [(in North Carolina)] and [his mother,] the
paternal grandmother, and [Grandmother] had previous
communications by phone to discuss the minor child and
exchanged photos . . . .
....
20. According to the verified pleadings of
[Grandmother], [Mother] resided at 6 different addresses
although she moved 8 times in 5 years. . . . .
21. After the no-contact order . . . and the charges were
dismissed, [Father and his mother] attempted to locate
[Andrea] . . . . [Mother] did not appear in court to testify
because she had left the state with [Andrea] and never
informed [Father] where she was going.
22. [Father] . . . . sent [gifts and cards for Andrea] to
[Grandmother’s] residence in Michigan as [Mother] had a
habit of returning to her mother’s residence when she
needed help from her. . . . .
....
26. . . . . [Grandmother’s] testimony that she moved from
her home into a different home right after her daughter’s
death because the memories of her were too painful, is not
credible. It once again appears to the court that it was
another way to hide or secret the child from [Father] now
that she was appointed guardian in an emergency hearing
in Michigan. In fact, it would seem to be more comforting
to the grieving child to be around her [M]other’s memories
and personal belongings, rather than be moved into a place
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with no memories.
....
(Parentheticals and footnote added).
¶ 15 Grandmother has not challenged any of these findings as unsupported by the
evidence, so these findings are binding upon this Court. In re K.N., ¶ 17; In re I.K., ¶
20; see also In re M.R.J., ¶ 38 (“The trial court is not required to make specific findings
of fact demonstrating its jurisdiction under the UCCJEA, but the record must reflect
that the jurisdictional prerequisites in the Act were satisfied when the court exercised
jurisdiction.” (quotations and citation omitted)). We also note that some of the
findings, particularly regarding North Carolina’s status as Andrea’s home state, are
actually conclusions of law, so we will review those “findings” de novo. See Walsh v.
Jones, 263 N.C. App. 582, 589–90, 824 S.E.2d 129, 134 (2019) (“If the trial court labels
as a finding of fact what is in substance a conclusion of law, we review that ‘finding’
de novo.” (quotations and citation omitted)); In re Everette, 133 N.C. App. 84, 85, 514
S.E.2d 523, 525 (1999) (“[A]ny determination requiring the exercise of judgment, or
the application of legal principles, is more properly classified a conclusion of law.”
(quotations and citation omitted)).
¶ 16 “Whenever one of our district courts holds a custody proceeding in which one
contestant or the children appear to reside in another state, the court must initially
determine whether it has jurisdiction over the action.” In re J.H., 244 N.C. App. at
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262, 780 S.E.2d at 234–35 (quotations and citation omitted). Subject-matter
jurisdiction over child custody actions is governed by N.C. Gen. Stat. § 50A-101 et
seq., North Carolina’s codification of the UCCJEA. As this Court has previously
noted, “Michigan and North Carolina have codified the UCCJEA in virtually identical
terms,” which, in Article 2, Part 2, establishes several “modes” of jurisdiction. See In
re A.L.L., 254 N.C. App. 252, 262, 802 S.E.2d 598, 605–06 (2017) (“The UCCJEA
recognizes four modes of subject-matter jurisdiction: (1) initial child-custody
jurisdiction, N.C. Gen. Stat. § 50A-201; (2) exclusive, continuing jurisdiction, N.C.
Gen. Stat. § 50A-202; (3) jurisdiction to modify determination, N.C. Gen. Stat. § 50A-
203; and (4) temporary emergency jurisdiction, N.C. Gen. Stat. § 50A-204.”).
¶ 17 The first “mode,” North Carolina General Statute § 50A-201, is at issue here.
Id. That section provides:
(a) . . . [A] court of this State has jurisdiction to make
an initial child-custody determination only if:
(1) This State is the home state of the child on the
date of the commencement of the proceeding, or
was the home state of the child within six months
before the commencement of the proceeding, and
the child is absent from this State but a parent or
person acting as a parent continues to live in this
State;
(2) A court of another state does not have
jurisdiction under subdivision (1), or a court of
the home state of the child has declined to
exercise jurisdiction on the ground that this
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State is the more appropriate forum under G.S.
50A-207 or G.S. 50A-208, and:
a. The child and the child’s parents, or the
child and at least one parent or a person
acting as a parent, have a significant
connection with this State other than
mere physical presence; and
b. Substantial evidence is available in this
State concerning the child’s care,
protection, training, and personal
relationships;
(3) All courts having jurisdiction under subdivision
(1) or (2) have declined to exercise jurisdiction on
the ground that a court of this State is the more
appropriate forum to determine the custody of
the child under G.S. 50A-207 or G.S. 50A-208; or
(4) No court of any other state would have
jurisdiction under the criteria specified in
subdivision (1), (2), or (3).
(b) Subsection (a) is the exclusive jurisdictional basis
for making a child-custody determination by a court of this
State.
(c) Physical presence of, or personal jurisdiction over, a
party or a child is not necessary or sufficient to make a
child-custody determination.
N.C. Gen. Stat. § 50A-201 (2021).
¶ 18 This section thus establishes jurisdiction over initial child custody
determinations in various scenarios. First, the court must identify the child’s “home
state” as defined in North Carolina General Statute § 50A-102. Next, the court must
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determine whether North Carolina has jurisdiction under any subsection of § 50A-
201. If North Carolina is the “home state” and “a parent or person acting as a parent
continues to live in this State,” jurisdiction falls under subsection (a)(1). Here, the
trial court, and the Michigan Court, determined North Carolina is Andrea’s home
state. See Veneskey, supra, 2021 Mich. App. LEXIS 5147 at *9–10, 2021 WL 3821012at *4 (explaining Michigan is not the home state before stating “even if North
Carolina does not qualify as the home state” implying North Carolina is the home
state). The trial court also found that a person acting as a parent, Stepfather,
continues to live in this state.
1. Home State
¶ 19 We begin the “home state” analysis with the date of commencement of the
initial child custody proceeding. In both North Carolina and Michigan,
“‘[c]ommencement’ means the filing of the first pleading in a proceeding.” N.C. Gen.
Stat. § 50A-102(5) (2021); Mich. Comp. Laws § 722.1102(e) (2021). And in both states,
a “child custody proceeding” includes a proceeding for guardianship. N.C. Gen. Stat.
§ 50A-102(4); Mich. Comp. Laws § 722.1102(d). As noted by the Michigan Court of
Appeals,
“Child-custody proceeding” means a proceeding in which
legal custody, physical custody, or parenting time with
respect to a child is an issue. Child-custody proceeding
includes a proceeding for . . . guardianship, paternity,
termination of parental rights, and protection from
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domestic violence, in which the issue may appear.
Veneskey, supra, 2021 Mich. App. LEXIS 5147 at *9, 2021 WL 3821012 at *4
(emphasis in original) (quoting Mich. Comp. Laws § 722.1102(d)). The Michigan
Court of Appeals continued:
The May 29, 2020 guardianship petition was filed only
several days after [Andrea] left North Carolina. Regardless
of the time period during which [Andrea] was removed
from North Carolina and [Grandmother’s] filings in
Michigan to secure guardianship and custody, we conclude
that it did not render Michigan as [Andrea’s] home state
for purposes of plaintiffs’ and defendant’s claims for
custody. Indeed, in the six-month time period preceding
[Andrea’s] move to Michigan and the commencement of
legal proceedings here, [Andrea] resided in North Carolina
with her family.
Id., 2021 Mich. App. LEXIS 5147 at *9-10, 2021 WL 3821012 at *4.
¶ 20 Michigan’s analysis is consistent with North Carolina law. Moreover, the
definition of “home state” in the UCCJEA notes that a “period of temporary absence”
of a parent or child is included in the statutory six-month period immediately before
commencement of a child custody proceeding. See N.C. Gen. Stat. § 50A-102(7) (“A
period of temporary absence of any of the mentioned persons is part of the period.”).
¶ 21 As noted by the Michigan Court of Appeals, “in the six-month time period
preceding [Andrea’s] move to Michigan and the commencement of legal proceedings
here, [Andrea] resided in North Carolina with her family.” Veneskey, supra, 2021
Mich. App. LEXIS 5147 at *9-10; 2021 WL 3821012 at *4. After her Mother’s death,
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Andrea remained with “her family,” specifically her Stepfather, who was “a person
acting as a parent,” and her sibling, until Grandmother took Andrea to Michigan on
18 May 2020. On 29 May 2020, Grandmother filed the temporary guardianship
proceeding, which was the “commencement of a child custody proceeding,” as
correctly noted by the Michigan Court of Appeals. Veneskey, supra, 2021 Mich. App.
LEXIS 5147 at *8, 2021 WL 3821012 at *4. The trial court found Grandmother took
Andrea to Michigan “to hide or secret the child from [Father] . . . .”
¶ 22 Under the UCCJEA, North Carolina was Andrea’s home state on the date of
the commencement of the proceeding in Michigan, which is the date of
commencement of the initial child-custody proceeding. Andrea had lived in North
Carolina continuously for more than six months prior to 18 May 2020, when
Grandmother took her to Michigan. Thus, Andrea had been in Michigan for only 11
days when a proceeding was filed. We conclude this period of 11 days in Michigan
with Grandmother was a temporary absence from North Carolina for purposes of the
statutory definition of “home state.”
While the issue of whether an absence from a state
amounted to a temporary absence has previously come
before this Court, we have decided this issue on a case-by-
case basis. Some courts in sister states have adopted
certain tests for determining whether an absence from a
state was a temporary absence. These tests include (1)
looking at the duration of absence, (2) examining whether
the parties intended the absence to be permanent or
temporary, and (3) adopting a totality of the circumstances
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approach to determine whether the absence was merely a
temporary absence. We deem the third option to be the
most appropriate choice for several reasons. First, it
comports with the approach taken by North Carolina
courts in determining the issue of whether an absence was
temporary on the basis of the facts presented in each case.
Second, it incorporates considerations, such as the parties’
intent and the length of the absence, that courts of sister
states have found important in making this determination.
Third, it provides greater flexibility to the court making the
determination by allowing for consideration of additional
circumstances that may be presented in the multiplicity of
factual settings in which child custody jurisdictional issues
may arise.
Chick v. Chick, 164 N.C. App. 444, 449–50, 596 S.E.2d 303, 308 (2004) (citations
omitted).
¶ 23 We therefore consider the “totality of the circumstances to determine whether
the absence was merely a temporary absence.” Id. As part of this analysis, we
consider the parties’ intent, length of the absence, and the particular factual
circumstances of this case. Id. The length of absence was extremely short, only 11
days, and the factual circumstances of this case are tragic, as this custody dispute
arose upon the death of Andrea’s mother and has continued, in two states, because
Grandmother sought to “hide or secret the child from [Father]” and establish custody
herself in Michigan. Under the totality of the circumstances, her presence in
Michigan was a “temporary absence” from North Carolina and North Carolina is
Andrea’s home state under the UCCJEA. Andrea lived here with her Mother,
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Stepfather, and sibling more than six months prior to 18 May 2020. She was moved
to Michigan only due to her Mother’s death. No doubt Grandmother intended this
move to be permanent, not temporary, but Grandmother is not Andrea’s parent and
did not have custody of Andrea. Thus, Andrea’s absence from North Carolina was
temporary, only several days, before the commencement of the proceeding. She had
resided in North Carolina with Mother and Stepfather for more than six months
before the commencement of the proceeding in Michigan. The trial court did not err
by concluding North Carolina is Andrea’s “home state.”
2. Presence of Parent or Person Acting as a Parent
¶ 24 Under subsection (a)(1), the next issue is whether “a parent or person acting
as a parent continues to live in this State.” N.C. Gen. Stat. § 50A-201(a)(1).
Grandmother contends Stepfather was not a “person acting as a parent” for purposes
of § 50A-201(a)(1). She argues
even though after [Mother’s] death [Stepfather] was acting
as a parent to the minor child, that status ceased when
[Stepfather] signed the agreement to allow Defendant-
Appellant to take the minor child to Michigan and
Defendant-Appellant did take the minor child to Michigan.
Therefore, at the time Plaintiff-Appellee filed his
complaint, [Stepfather] was not a person acting as a parent
to the minor child because [Stepfather] did not have
physical custody of the minor child for six consecutive
months immediately before the commencement of the
action since Defendant-Appellant had the minor child for
approximately two months and prior to that [Mother] had
custody of the minor child as her parent. In addition,
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[Stepfather] has not been awarded custody nor is he
seeking custody of the minor child as evidenced by his
signing of the agreement that gave away any parental
rights he possessed at the time to Defendant-Appellant.
(04/29/2021 T pp 48, 79).
¶ 25 The trial court found that Andrea’s Stepfather was a person “acting as a
parent” who continues to live in North Carolina, but this finding is actually a
conclusion of law and we review it accordingly. Walsh, 263 N.C. App. at 589–90, 824
S.E.2d at 134; In re Everette, 133 N.C. App. at 85, 514 S.E.2d at 525. Thus, we must
consider whether Stepfather was a “person acting as a parent” under the UCCJEA.
¶ 26 North Carolina General Statute § 50A-102(13) defines a “person acting as a
parent” as “a person, other than a parent, who:
a. Has physical custody of the child or has had physical
custody for a period of six consecutive months, including
any temporary absence, within one year immediately
before the commencement of a child-custody proceeding;
and
b. Has been awarded legal custody by a court or claims a
right to legal custody under the law of this State.
N.C. Gen. Stat. § 50A-102(13) (2021).
¶ 27 The Uniform Law Comment for UCCJEA § 50A-102 notes:
The term “person acting as a parent” has been slightly
redefined. It has been broadened from the definition in the
UCCJA to include a person who has acted as a parent for a
significant period of time prior to the filing of the custody
proceeding as well as a person who currently has physical
custody of the child. In addition, a person acting as a parent
must either have legal custody or claim a right to legal
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custody under the law of this State. The reference to the law
of this State means that a court determines the issue of
whether someone is a “person acting as a parent” under its
own law.
N.C. Gen. Stat. Ann. § 50A-102 (West 2021) (emphasis added).
¶ 28 We have been unable to find any North Carolina case addressing whether a
stepparent who lives with a minor child and her other parent for more than six
months prior to the commencement of the child custody proceeding may be considered
as a “person acting as a parent” under North Carolina General Statute § 50A-102,
particularly where that stepparent is not claiming a right to legal custody. Before
the trial court, Grandmother argued Stepfather could not be a “person acting as a
parent” under the UCCJEA because he was not claiming any right to legal custody;
instead, he had executed a “consent agreement to allow [Grandmother] to take the
child back to Michigan without [Father’s] consent.”9
¶ 29 Since the UCCJEA is a uniform act, in the absence of any North Carolina cases
addressing this issue in detail, we find the analysis by other courts instructive. The
North Dakota Supreme Court has summarized treatment of this issue by many states
in Schirado v. Foote, 785 N.W.2d 235 (N.D. 2010). In Shirado, in a custody dispute
9The terms of this document are not in our record. It is referred to at one point as a “power
of attorney” and the trial court referred to it as a “consent agreement,” but the import of the
document was to grant Grandmother permission to take the child to Michigan and
presumably to allow Grandmother to exercise some sort of parental authority over the child.
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between the child’s parents, the trial court had determined the Fort Berthold Indian
Reservation was the child’s home state because the child had resided there with his
grandparents, as “a person acting as a parent.” 785 N.W.2d at 237–38. The North
Dakota Supreme Court remanded for additional findings of fact but addressed the
analysis of whether the grandparents may be persons “acting as a parent” under the
UCCJEA:
The alternative basis for the district court’s dismissal of
Schirado’s action was that the child lived with Foote’s
parents. If the home state determination was based in
whole or in part on the child living with his grandparents,
the grandparents would need to be persons acting as
parents to the child. Under our version of the UCCJEA, a
“[p]erson acting as a parent” is a nonparent who
“a. Has physical custody of the child or has had
physical custody for a period of six consecutive
months, including any temporary absence, within
one year immediately before the commencement of a
child custody proceeding; and
b. Has been awarded legal custody by a court or
claims a right to legal custody under the law of this
state.”
N.D.C.C. § 14–14.1–01(11). The grandparents cared for the
child from September 2006 to December 2007, arguably
satisfying the first requirement of being “a person acting
as a parent” if the jurisdictional decision was not based on
J.L.F. living with Foote. N.D.C.C. § 14–14.1–01(6).
However, jurisdiction depends on the circumstances that
exist at the time the proceeding is commenced. Id. The
grandparents had not been awarded legal custody by a
court before Schirado commenced this action in North
Dakota court. Therefore, the dispositive issue for
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determining jurisdiction, based on the child living with the
grandparents, is whether the grandparents qualified as
persons acting as parents by claiming a right to legal
custody under the laws of North Dakota. See N.D.C.C. §
14–14.1–01(11)(b). We will proceed to discuss the
applicable law on this issue because its analysis is likely to
arise on remand. In re Voisine, 2010 ND 17, ¶ 13, 777
N.W.2d 908 (citing Dosland v. Netland, 424 N.W.2d 141,
142 (N.D.1988)).
[¶ 17] This Court has not interpreted what it means to
claim a right to legal custody under North Dakota law. A
survey of judicial decisions in other states reveals there is
no consistent interpretation of the requirement. However,
national case law consistently presents three elements
considered in determining if a person claims a right to legal
custody under the laws of a state: 1) formality, 2) timing
and 3) plausibility.
A
[¶ 18] Our sister states require a nonparent’s claim of legal
custody to conform with differing levels of formality under
the UCCJEA. Pennsylvania and Texas require nonparents
seeking “person acting as a parent” status to formally apply
for legal custody from a court before they are deemed to
have claimed a right to legal custody under the UCCJEA.
Wagner v. Wagner, 887 A.2d 282, 287 (Pa.Super.Ct.2005)
(holding parent’s mother needed to seek legal custody of
the child from a court to claim a right to legal custody under
UCCJEA); In re S.J.A., 272 S.W.3d 678, 684
(Tex.App.2008) (holding stepmother needed to seek legal
custody of child from a court to claim a right to legal
custody under UCCJEA). On the other end of the spectrum,
Delaware requires no formal application for legal custody,
instead requiring only that the prospective “person acting
as a parent” have “the right to claim legal custody” to
qualify as a person claiming a right to legal custody of a
child. Adoption House, Inc. v. A.R., 820 A.2d 402, 408–09
(Del.Fam.Ct.2003) (holding adoption agency claimed right
to legal custody of child by having “the right to claim legal
custody”).
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[¶ 19] In Hangsleben v. Oliver, 502 N.W.2d 838, 842–43
(N.D.1993), this Court addressed the term “a person acting
as a parent” under the UCCJEA’s predecessor, the UCCJA.
See N.D.C.C. ch. 14–14 (repealed 1999). In Hangsleben and
under the UCCJA, “[a] ‘person acting as a parent’ is defined
as a ‘person, other than a parent, who has physical custody
of a child and who has either been awarded custody by a
court or claims a right to custody.’ ” 502 N.W.2d at 842. In
Hangsleben we concluded “the common-sense definition of
a ‘person acting as a parent’ ” included grandparents who
“fed, clothed, and cared for” their granddaughter at the
request of the child’s mother and without a court order. Id.
at 843. Other jurisdictions have reached similar results.
See In re A.J.C., 88 P.3d 599, 606–07 (Colo.2004) (finding
adoptive parents to be persons acting as parents under
UCCJA where they had “exercised all parental rights and
responsibilities” since the child’s birth); Reed v. Reed, 62
S.W.3d 708, 713 (Mo.Ct.App.2001) (finding maternal
grandmother was person acting as parent under the plain
meaning of the term in the UCCJA); In re B.N.W., No.
M2004–02710–COA–R3–JV, 2005 WL 3487792, **25–26
(Tenn.Ct.App. Dec.20, 2005) (finding paternal
grandmother providing care for child was person acting as
a parent under UCCJEA); Ruffier v. Ruffier, 190 S.W.3d
884, 890 (Tex.App.2006) (finding maternal grandmother
caring for child in Belarus was a person acting as a parent
under UCCJEA).
[¶ 20] As between the UCCJA and the UCCJEA, the
UCCJEA has changed the pertinent portion of the
definition of a “person acting as a parent” to mean a person
who “[h]as been awarded legal custody by a court or claims
a right to legal custody under the law of this state.”
N.D.C.C. § 14–14.1–01(11)(b). We note the different words
used in the definitions in the UCCJEA and the UCCJA.
However, we have not been asked by the parties to this
appeal to deviate from the level of formality applied in
Hangsleben. Nor do we perceive a clear majority position
among other jurisdictions addressing this point so that we
are willing to change course without the benefit of full
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briefing and argument by parties with a stake in the
outcome of the issue.
[¶ 21] Here, the grandparents did not formally claim a
right to legal custody until they petitioned the tribal court
to grant them temporary custody of the child. But their
extended care and custody of the child appears to satisfy
the “common-sense” definition in Hangsleben that the
grandparents are persons acting as a parent. See also
N.D.C.C. § 14–10–05 (parent may place child in home of
grandparent). Therefore, for purposes of this case, if
jurisdiction is based upon the grandparents, the formality
requirement can be considered satisfied for purposes of
determining whether the Fort Berthold Indian Reservation
is the home state.
B
[¶ 22] The next factor is timing of the nonparent’s claim. A
small number of jurisdictions allow nonparents to assert
their claim to legal custody at any point in the pending
litigation. See, e.g., Patrick v. Williams, 952 So.2d 1131,
1139 n. 9 (Ala.Civ.App.2006) (applying Alabama’s modified
version of UCCJEA and holding no formal claim to legal
custody need be made in cases where grandparents have
physical custody of child at time of proceedings); Adoption
House, Inc., 820 A.2d at 408–09 (waiving timing element
from consideration by allowing nonparents to claim a right
to legal custody under UCCJEA by merely having the right
to do so). Most jurisdictions addressing this issue require a
nonparent’s claim of legal custody, whether formal or
informal, to be asserted prior to or simultaneous with the
initiation of the pending action. See, e.g., In re Sophia G.L.,
229 Ill.2d 143, 321 Ill.Dec. 748, 890 N.E.2d 470, 482 (2008)
(holding maternal grandparents were persons acting as
parents under UCCJEA where grandparents petitioned
Indiana court for custody of children before father initiated
pending proceeding in Illinois); Plemmons v. Stiles, 65
N.C.App. 341, 309 S.E.2d 504, 506 (1983) (holding
grandparents were persons acting as parents under
UCCJA where grandparents initiated pending proceeding
by petitioning for custody of child); Draper v. Roberts, 839
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P.2d 165, 173–74 (Okla.1992) (holding under UCCJA that
“[t]he critical time for testing whether the custodians were
‘acting as parents’ and ‘claim a right to custody’ was the
point in time when the [pending action] was filed”);
O’Rourke v. Vuturo, 49 Va.App. 139, 638 S.E.2d 124, 128
(2006) (holding nonbiological father was a person acting as
a parent under UCCJEA where he requested custody at
outset of pending divorce proceeding); In re A.C., 165
Wash.2d 568, 200 P.3d 689, 692 (2009) (holding foster
parents were persons acting as parents under UCCJEA
where they petitioned for nonparental custody at outset of
pending action).
[¶ 23] Giving priority to a child’s home state is the central
provision of the UCCJEA, and the UCCJEA is intended to
“[a]void jurisdictional competition and conflict with courts
of other States in matters of child custody.” Uniform Child
Custody Jurisdiction and Enforcement Act § 101 cmt.1, 9
U.L.A. 657; Kelly, 2009 ND 20, ¶ 21, 759 N.W.2d 721. It has
long been held that subject matter jurisdiction is
determined at the time a suit is initiated, and to hold
otherwise would undermine one of the UCCJEA’s central
functions by allowing participants to divest a state of
jurisdiction by changing the analysis after proceedings
have begun. In re Mannix, 97 Or.App. 395, 776 P.2d 873,
875 (1989). We therefore conclude that to qualify as a
“person acting as a parent” under the UCCJEA, a
nonparent’s claimed right to legal custody must occur prior
to, or simultaneous with, the initial filing related to the
instant litigation. To hold otherwise would be contrary to
the function of the UCCJEA and contrary to the principles
of “certainty, predictability and uniformity of result.” Daley
v. American States Preferred Ins. Co., 1998 ND 225, ¶ 14 n.
4, 587 N.W.2d 159 (enumerating goals in choice of law
analysis).
Schirado, 785 N.W.2d at 240–43 (alterations in original).
¶ 30 Thus, the North Dakota Supreme Court determined the factors normally
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considered in the analysis of whether a person is “a person acting as a parent” under
the UCCJEA are the 1) formality, 2) timing and 3) plausibility of the person’s claimed
right to legal custody of the child. Id. at 241. The relevant time is immediately prior
to or simultaneously with the commencement of the child custody proceeding. Id. at
243. We hold this analysis is consistent with the “function of the UCCJEA” and
“principles of ‘certainty, predictability and uniformity of result.’” Id. (quoting Daley
v. American States Preferred Ins. Co., 587 N.W.2d 159, 162 n.4 (N.D. 1998)).
¶ 31 Here, these factors make our analysis quite simple. We need not analyze the
formality or plausibility of any claim to custody by Stepfather under North Carolina
law, because he made no such claim. At the time of commencement of the proceeding,
Stepfather was not making any claim to custody. To the contrary, he had executed a
document purporting to give Grandmother permission to take the child to Michigan.
We need not consider whether Stepfather would have had any right to a claim for
custody under North Carolina law because he clearly did not make such a claim but
instead declared his opposite intention. Under the UCCJEA, Stepfather was not a
“person acting as a parent,” and the trial court’s conclusion to this effect was not
supported by its findings of fact.
¶ 32 Thus, North Carolina is Andrea’s “home state,” but no parent or person acting
as a parent remains in North Carolina. Subject matter jurisdiction does not fall under
subsection (a)(1). We must proceed to consider subsection (a)(2).
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3. Significant Connection Jurisdiction
¶ 33 The trial court concluded North Carolina would have significant connection
jurisdiction, but part of this determination was based upon its conclusion that
Stepfather was a “person acting as a parent” and we have already addressed this
issue. There was no “person acting as a parent” in this case, and Father is the only
parent.
¶ 34 North Carolina General Statute § 50A-201(a)(2) provides this State may have
jurisdiction if:
(2) A court of another state does not have jurisdiction
under subdivision (1), or a court of the home state of the
child has declined to exercise jurisdiction on the ground
that this State is the more appropriate forum under G.S.
50A-207 or G.S. 50A-208, and:
a. The child and the child’s parents, or the child and at
least one parent or a person acting as a parent, have a
significant connection with this State other than mere
physical presence; and
b. Substantial evidence is available in this State
concerning the child’s care, protection, training, and
personal relationships;
N.C. Gen. Stat. § 50A-201(a)(2) (emphasis added).
¶ 35 As we have already addressed, Father lives in South Carolina. There is no
parent or “person acting as a parent” who lives in North Carolina or who has
significant connections with North Carolina. Stepfather was not a “person acting as
a parent,” and based upon the trial court’s findings of fact, Grandmother was not a
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“person acting as a parent” either. At the time of the commencement of the
proceeding, she did not have “physical custody of the child” and had not “had physical
custody for a period of six consecutive months, including any temporary absence,
within one year immediately before the commencement of a child custody
proceeding.” N.C. Gen. Stat. § 50A-102(13). Based on the trial court’s findings, the
child had “significant connection” to North Carolina, but subsection (2) requires that
both the child and “at least one parent or a person acting as a parent, have a
significant connection with this State other than mere physical presence.” N.C. Gen.
Stat. § 50A-201(a)(2)(a). Here, there is no parent in North Carolina or with
significant connections to North Carolina. Thus, jurisdiction cannot fall under
subsection (a)(2), despite the trial court’s findings regarding “substantial evidence . .
. available in this State concerning the child’s care, protection, training, and personal
relationships.” Id., § 50A-201(a)(2)(b). We must proceed to subsection (a)(3).
4. More Appropriate Forum Jurisdiction
¶ 36 North Carolina General Statute § 50A-201(a)(3) allows jurisdiction where “[a]ll
courts having jurisdiction under subdivision (1) or (2) have declined to exercise
jurisdiction on the ground that a court of this State is the more appropriate forum to
determine the custody of the child under G.S. 50A-207 or G.S. 50A-208.”
¶ 37 Here, Grandmother claimed Michigan should have subject matter jurisdiction,
but Michigan determined it was not the child’s home state and that North Carolina
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is the more appropriate forum to determine custody. See Veneskey, supra, 2021 Mich.
App. LEXIS 5147 at *9–13, 2021 WL 3821012 at *4–6 (Michigan court finding it
would be an inconvenient forum and then determining North Carolina would have
jurisdiction). There is no state other than North Carolina or Michigan which might
have initial child custody jurisdiction under the UCCJEA. Although Father lives in
South Carolina, Andrea has never lived there. But this case does not fall clearly
under subsection (a)(3) because no other state “having jurisdiction under subdivision
(1) or (2) . . . declined to exercise jurisdiction on the ground that a court of this State
[North Carolina] is the more appropriate forum to determine the custody of the child
under G.S. 50A-207 or G.S. 50A-208.” N.C. Gen. Stat. § 50A-201(a)(3) (emphasis
added. Michigan determined it did not have jurisdiction under subdivisions (1) or (2),
although it did determine North Carolina would be the more appropriate forum.
Veneskey, supra, 2021 Mich. App. LEXIS 5147 at *9–13, 2021 WL 3821012 at *4–6.
We must proceed to subdivision (a)(4).
5. Jurisdiction by Necessity
¶ 38 North Carolina General Statute § 50A-201(a)(4) provides that a court of this
State has jurisdiction to make an initial child-custody determination only if “[n]o
court of any other state would have jurisdiction under the criteria specified in
subdivision (1), (2), or (3).” N.C. Gen. Stat. § 50A-201(a)(4).
¶ 39 Due to the unusual circumstances of this case, North Carolina has jurisdiction
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by necessity under § 50A-201(a)(4). As we have already discussed, no other state
would have jurisdiction to make an initial child custody determination under
subdivisions (1), (2), or (3). North Carolina is the child’s home state, and as
demonstrated by the trial court’s unchallenged findings of fact, the child has
significant connections to North Carolina. She lived here prior to her Mother’s death,
and she has a sibling in North Carolina with her Stepfather. As noted by the trial
court’s findings, there is substantial evidence regarding the child’s welfare in North
Carolina. The only other state which could have possibly had jurisdiction under the
UCCJEA, Michigan, has determined it is not the child’s home state and that North
Carolina is the more appropriate forum. Veneskey, supra, 2021 Mich. App. LEXIS
5147 at *9–13, 2021 WL 3821012 at *4–6. Therefore, although the trial court relied
upon the wrong subdivision of 50A-201(a) to conclude it had jurisdiction, on de novo
review, we conclude North Carolina does have jurisdiction to make an initial child
custody determination under subdivision (a)(4).
D. Custody Determination
¶ 40 Finally, Grandmother argues the trial court erred in dismissing her claim for
custody and in awarding Father full custody because it concluded Father was a fit
parent who has not abdicated his constitutionally protected rights as a parent to
Andrea.
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¶ 41 Our Supreme Court has long established that “natural parents have a
constitutionally protected interest in the companionship, custody, care, and control
of their [biological] children.” Price v. Howard, 346 N.C. 68, 72, 484 S.E.2d 528, 530
(1997); David N. v. Jason N., 359 N.C. 303, 305, 608 S.E.2d 751, 752–53 (2005)
(reaffirming “the paramount right of parents to the custody, care, and control of their
children”). “[T]he Due Process Clause would be offended ‘if a [court] were to attempt
to force the breakup of a natural family . . . without some showing of unfitness and
for the sole reason that to do so was thought to be in the children’s best interest.’”
Adams, 354 N.C. at 61, 550 S.E.2d at 502 (quoting Price, 346 N.C. at 78, 484 S.E.2d
at 534) (alterations from original omitted and own alterations added). As our
Supreme Court has explained, a fit and natural parent “is presumed to act in the
child’s best interest and . . . there is normally no reason for the state to inject itself
into the private realm of the family to further question the ability of that parent to
make the best decisions concerning the rearing of that parent’s [child].” Id., 354 N.C.
at 60, 550 S.E.2d at 501 (quotations and alterations from original omitted) (citing
Troxel v. Granville, 530 U.S. 57, 68–69, 147 L.E.2d 49, 58 (2000)).
¶ 42 “[W]hile a fit and suitable parent is entitled to the custody of his child, it is
equally true that where fitness and suitability are absent he loses this right.” David
N., 359 N.C. at 305, 608 S.E.2d at 753 (quotations and citations omitted); Adams, 354
N.C. at 61, 550 S.E.2d at 502 (“[A] parent’s right to custody is not absolute.”). Indeed,
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the protection afforded to biological parents comes “with similar recognition that
some facts and circumstances, typically those created by the parent, may warrant
abrogation of those interests.” Price, 346 N.C. at 75, 484 S.E.2d at 532; id., 346 N.C.
at 79, 484 S.E.2d at 534 (“[A] parent may no longer enjoy a paramount status if his
or her conduct is inconsistent with this presumption or if he or she fails to shoulder
the responsibilities that are attendant to rearing a child.”). “Unfitness, neglect, and
abandonment clearly constitute conduct inconsistent with the protected status
parents may enjoy.” Id., 346 N.C. at 79, 484 S.E.2d at 534. This is in addition to
“[o]ther types of conduct, which must be viewed on a case-by-case basis . . . .” Id., 346
N.C. at 79, 484 S.E.2d at 534–35. Ultimately, the test our Supreme Court lays out is
that “a natural parent may lose his constitutionally protected right to the control of
his children in one of two ways: (1) by a finding of unfitness of the natural parent, or
(2) where the natural parent’s conduct is inconsistent with his or her constitutionally
protected status.” David N., 359 N.C. at 307, 608 S.E.2d at 753; see also Price, 346
N.C. at 73, 484 S.E.2d at 531 (stating the interest of natural parents “must prevail
against a third party unless the court finds that the parents are unfit or have
neglected the welfare of their children”). A finding of either must be supported by
clear and convincing evidence. David N., 359 N.C. at 307, 608 S.E.2d at 753.
¶ 43 Here, the trial court determined Father was both a fit and proper parent and
he had not abdicated his constitutionally protected right to parent Andrea.
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Grandmother argues this determination is erroneous because she presented clear and
convincing evidence showing Father “did not partake in much of the child rearing
including taking the child to her many doctors’ appointments, only paid child support
twice in 2015 in the over five years that he did not have custody of the child, . . . did
not visit with the minor child upon the end of [his and Mother’s] relationship in
approximately 2015[,]” or thereafter attempt to seek custody; and that he drinks
alcohol. According to Grandmother, this clear and convincing evidence mandated the
trial court conclude Father had abdicated his right to Andrea’s custody and award
custody to Grandmother.
¶ 44 We note a trial court is not bound to render any determination propounded by
a party simply because there is sufficient evidence before it which could tend to
support that determination. Cf. Adams, 354 N.C. at 63, 550 S.E.2d at 503 (explaining
a “trial court’s findings of fact are conclusive on appeal if there is evidence to support
them, even though the evidence might sustain findings to the contrary” (emphasis
added; quotations and citations omitted)). Again, Grandmother challenges the trial
court’s custody determination but does not argue there was insufficient evidence to
support the findings of fact upon which it relied in reaching its conclusion. Our
inquiry thus is to “determine whether the trial court’s findings support its legal
conclusion that” Father did not abdicate his constitutional rights by acting
inconsistent therewith. Id., 354 N.C. at 65, 550 S.E.2d at 504.
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¶ 45 The following findings of fact relevant to the trial court’s custody
determination are unchallenged as supported by the evidence and are thus binding
on us:
9. [Father] learned of the death of [Mother] on the
social media page of a family member of [Mother] and he
immediately returned to North Carolina to pick up his
daughter. He made inquiry with the police department as
well as family members and neighbors as to her
whereabouts.
....
11. The Court finds that within a few days of the
unexpected death of [Mother], [Grandmother] came to
North Carolina from Michigan and removed the child from
the jurisdiction of North Carolina and took her back to
Michigan. [Father] was never informed. [Grandmother]
testified that the thought to notify [Father] never crossed
her mind.
12. [Grandmother] and the [Stepfather] had an attorney
draw up a consent agreement to allow [Grandmother] to
take the child back to Michigan without [Father’s] consent.
. . . The court finds that [Father] did not cede any portion
of his custody rights to [Stepfather] or [Grandmother]
voluntarily as he was never notified of the marriage to
[Stepfather] or the consent agreement removing his child
from the jurisdiction of the court.
13. [Grandmother] made zero efforts to locate [Father]
before secreting the child away. [Father] had family in the
area where the child was residing and the paternal
grandmother [and Grandmother] had previous
communications by phone to discuss the minor child and
exchanged photos of the minor child. At no time was
[Father] or the paternal grandmother given the
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opportunity to visit with the minor child while in the care
of [Grandmother].
14. It is uncontroverted that [Father] and [Mother] had
a tumultuous relationship. They broke up a few times and
got back together. It is common for couples who have a
traumatic breakup to leave custody arrangements of the
child (born of their relationship) open and incomplete as
they navigate the issues. The court finds that the gap of
time that [Father] went without communicating with his
child was not tantamount to abandonment or neglect.
15. [Father] is a person of limited means financially and
educationally. It appears from his testimony and from the
testimony of the paternal grandmother, they were both led
to believe by [Mother] and [Grandmother] that they could
no longer have communication with the minor child. This
is consistent with the years between 2014-2020.
16. There is credible evidence by [Father] and the
paternal grandmother that [Father] did engage in
parenting activities such as feeding, changing and taking
care of the child while [Mother] was at work. The parents
of this minor child were very young, and both acted as such
on multiple occasions, before and after the birth of the
child. This does not make [Father] an unfit parent. He was
not given the opportunity to parent after [Mother] and
child moved away and [Mother] changed her name,
through marriage.
17. During one of their breakups, [Father] and [M]other
attempted to establish a custody agreement including but
not limited to child support. [Father] did actually make two
child support payments before the parties reconciled, and
the agreement became moot. There was never a child
support order entered by any court between the parties
subsequently. . . . .
18. There is credible evidence that after the final
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breakup of [Father] and [Mother], that [Father] was
informed he was not allowed to have any contact with the
minor child due to a pending charge for breaking and
entering which was later dismissed.
19. [Father] remained compliant with the court ordered
no-contact order and believed that any contact with
[Mother] or the minor child would result in his bond being
revoked. This order was in effect between 2015-2016.
During that time period, [Father] did not attempt to
contact [Mother] or the child. His belief that he couldn’t
have contact was reasonable based on the facts and
circumstances at that time.
....
21. After the no-contact order (pursuant to the domestic
charges against [Father]) and the charges were dismissed,
[Father] and the paternal grandmother attempted to locate
the minor child through family inquiries and social media.
[Mother] had a different last name at that point, and they
did not know how to find her. [Mother] did not appear in
court to testify because she had left the state with the
minor child and never informed [Father] where she was
going.
22. [Father] and paternal grandmother did purchase
and mail gifts, cards and letters for the minor child in an
effort to reestablish contact with her. They were sent to
[Grandmother’s] residence in Michigan as [Mother] had a
habit of returning to her mother’s residence when she
needed help from her. Many, if not all, of the cards and gifts
were returned to [Father] by [Grandmother], or “someone”
in the State of Michigan. The testimony of [Grandmother]
that she never saw any of the gifts, cards and letters which
were addressed to the child to her address is not credible.
23. The minor child appeared to be bonded with the
paternal grandmother as well, prior to the child being
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moved around by [Mother] and [Grandmother]. In fact,
[Father] (with the help of the paternal grandmother) and
child’s [M]other were able to make amenable arrangements
for visitations each time the couple broke up.
24. [Grandmother] has not allowed [Father] to have any
contact with the minor child since the death of her
[M]other, even though [Grandmother] has been aware that
he has attempted to locate the child and have a
relationship with her.
25. The minor child has never been informed that
[Stepfather] is not her biological father or that her real
[F]ather even exists. It appears that the intent of
[Grandmother] was to thwart any potential relationship
that the minor child could have with [Father].
26. The Court finds that [Grandmother] has
intentionally tried to hide the minor child from [Father].
[Grandmother’s] testimony that she moved from her home
into a different home right after her daughter’s death
because the memories of her were too painful, is not
credible. It once again appears to the court that it was
another way to hide or secret the child from [Father] now
that she was appointed guardian in an emergency hearing
in Michigan. In fact, it would seem to be more comforting
to the grieving child to be around her [M]other’s memories
and personal belongings, rather than be moved into a place
with no memories.
27. There is no credible evidence that [Father]
voluntarily permitted the minor child to remain in the
custody of [Grandmother] or agreed to allow
[Grandmother] to act in loco parentis to the child. It would
appear from the evidence that long before the [M]other
passed away, [Mother] was moving around excessively in
an effort to alienate the child from her [F]ather and
[Grandmother] was funding those moves. . . .
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28. There is credible evidence to indicate that there were
gaps in time when [Father] did not pursue the minor child’s
whereabouts, however, the court does not find that brief
gaps of time are tantamount to abandonment of the minor
child. [Mother] moved multiple places and got married
with a name change. She never informed [Father] of any of
those moves or changes.
29. . . . [Mother] intentionally left the child with
[Grandmother] for months at a time after [Father] and
[M]other finally split. [Father] was never given the
opportunity to agree or disagree with said placement.
....
32. The minor child has a sibling who is in the custody
of [Father] whom she has never met, and a sibling who
resides with her [Stepfather] . . . .
¶ 46 We note that “[i]n considering whether disruption of custody over an extended
period of time may result in a possible displacement of a parent’s constitutionally
protected interests,” our Supreme Court has “recognized the danger of a fact situation
. . . in which the custodian[] obtained custody unlawfully[:]”
the resolution of cases must not provide incentives for
those likely to take the law into their own hands. Thus,
those who obtain custody of children unlawfully,
particularly by kidnapping, violence, or flight from the
jurisdiction of the courts, must be deterred. Society may
not reward, except at its peril, the lawless because the
passage of time has made correction inexpedient.
Price, 346 N.C. at 81–82, 484 S.E.2d at 536 (quotations, citations, and alterations
from original omitted; own alteration added).
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¶ 47 The trial court’s findings of fact fully support its conclusions that Father did
not act inconsistently with his constitutionally protected status as a natural parent
and was fit to have custody. Cf. Adams, 354 N.C. at 66, 550 S.E.2d at 505 (“The trial
court’s findings of fact are sufficient, when viewed cumulatively, to support its
conclusion that [the natural parent’s] conduct was inconsistent with his protected
interest in the child.”). Grandmother’s argument is based on her contentions
regarding the evidence she presented which she believes would support different
findings of fact and also regarding the best interests of the child. However, the trial
court is the sole judge of credibility of the witnesses. “[T]he trial court sees the parties
in person and listens to all the witnesses. This allows the trial court to detect tenors,
tones and flavors that are lost in the bare printed record read months later by
appellate judges.” Id., 354 N.C. at 63, 550 S.E.2d at 503 (quotations and citations
omitted). And where the natural parent is not unfit and has not acted inconsistently
with his constitutionally protected rights as a parent, even if Grandmother may have
a greater ability to provide for the child, the government may not, “over the objections
of the parent,” remove a child from her natural parent “solely to obtain a better result
for the child.”10 Id., 354 N.C. at 61–62, 550 S.E.2d at 502–503 (quotations and citation
10The evidence from the child’s therapist appointments in Michigan following her Mother’s
death, which Grandmother sought to introduce and argues was erroneously excluded, was
not proffered for the record. In any event, evidence from Andrea’s therapy in Michigan would
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omitted). We conclude the evidence and the trial court’s findings, unchallenged and
binding on appeal, support the trial court’s determination that Father is fit and
proper and has not abdicated his constitutionally protected right to parent Andrea.
Cf. In re Gibbons, 247 N.C. 273, 281, 101 S.E.2d 16, 22 (1957) (“Since the death of his
wife there is little evidence that he has had any great yearning to have his child with
him . . . . Instead he surrendered this high privilege to the grandmother . . . .”
(quotations and citation omitted)). Accordingly, the trial court did not err in its
dismissal of Grandmother’s claim or in its award of full custody to Father.
III. Conclusion
¶ 48 Although the trial court relied upon the wrong subsection of North Carolina
General Statute § 50A-201(a) to conclude North Carolina has jurisdiction under the
UCCJEA, the trial court’s findings of fact support a conclusion that North Carolina
has subject matter jurisdiction over custody under the UCCJEA and Father is a fit
and proper parent who has not abdicated his constitutional rights as a parent. We
therefore affirm the trial court’s orders as to subject matter jurisdiction and custody.
Grandmother’s motion for sanctions under the appellate rules is denied.
AFFIRMED.
not address Father’s circumstances or fitness as a parent under the circumstances of this
case but could relate only to the best interests of the child—an issue neither the trial court
nor we can address.
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Opinion of the Court
Judges HAMPSON and JACKSON concur.