In Re the Custody of Branch

192 S.E.2d 43 (1972) 16 N.C. App. 413

In the Matter of the CUSTODY of Vannessa BRANCH and Jessie Montine Branch, minors.

No. 7216DC725.

Court of Appeals of North Carolina.

October 25, 1972.

John C. B. Regan, III, Lumberton, for appellants.

McLean, Stacy, Henry & McLean by William S. McLean, Lumberton, for respondent Claude Earl Branch, appellee.

BRITT, Judge.

Appellants contend that the court erred in awarding custody of the children to their father when he had filed no motion or petition and had not indicated that he was seeking custody. This contention is without merit.

Petitioner, the paternal grandmother of the Branch children, had standing to institute this action. "Any parent, relative, or other person, agency, organization or institution claiming the right to custody of a minor child may institute an action or proceeding for the custody of such child . . . ." G.S. § 50-13.1. Following the institution of an action or proceeding pursuant to G.S. § 50-13.1, the court is authorized to award the custody of the child "to such person, agency, organization or institution as will, in the opinion of the judge, best promote the interest and welfare of the child." G.S. § 50-13.2(a).

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 such party would be subject to orders of the court. We have held, however, that this may be done even after judgment and by the appellate court when the case is appealed. See Brandon v. Brandon, 10 N.C. App. 457, 179 S.E.2d 177 (1971). In the case at bar the father was a respondent, appeared at the hearing in person and through counsel, and is subject to orders of the court. We hold that the court was fully authorized to award him custody of the children although he had filed no pleading asking for their custody. G.S. § 50-13.2(a).

Appellants contend that there was not sufficient evidence presented to support the findings of fact and conclusions of law that there had been considerable change of conditions justifying the awarding of custody to the father. We disagree with this contention. We hold that the evidence was plenary to support the findings of fact and conclusions of law.

We have carefully considered the other contentions argued in appellants' brief but find them to be without merit.

The order appealed from is

Affirmed.

MALLARD and BROCK, JJ., concur.