Opinion
No. COA94-1285
Filed 17 October 1995
Parent and Child § 25 (NCI4th) — initial custody determination between third person and natural parent — finding required In an initial custody dispute between a third person and the natural parent, the trial court erred in awarding custody to the third person based solely on a "best interest and welfare" analysis without making findings, as required by Petersen v. Rogers, 337 N.C. 397, with respect to plaintiff father's fitness to have custody of his minor child or as to whether he had neglected her welfare.
Am Jur 2d, Parent and Child §§ 23-31.
Award of custody of child where contest is between child's father and grandparent. 25 ALR3d 7.
Award of custody of child where contest is between natural parent and stepparent. 10 ALR4th 767.
Appeal by plaintiff from order entered 23 June 1994 by Judge Jerry Leonard in Wake County District Court. Heard in the Court of Appeals 24 August 1995.
James F. Lovett, Jr., and John B. Gupton for plaintiff-appellant.
Byrd Meares, by Kevin Leon Byrd for defendant-appellees.
Judge GREENE dissenting.
Plaintiff and defendant Lori Riddick are the biological parents of Bianca Chantise Lambert. The child was born out of wedlock on 29 August 1991, when defendant Riddick was a student at St. Augustine's College and plaintiff was a student at North Carolina State University. Although there has never been, prior to this proceeding, an action to determine custody of the child, she has lived primarily with defendant Annette Utley, a friend of defendant Riddick's, since shortly after her birth because Riddick was not in a position to care for her. Defendant Utley, who has two grown children and now lives in Michigan, has provided the daily care and nurture for the child and the child has apparently thrived.
Plaintiff brought this action on 17 May 1993 alleging that he had been denied reasonable visitation with his daughter. Defendants filed a joint answer in which they asserted that plaintiff had been permitted visitation with the child and, by counterclaim, requested that custody of the child be awarded to defendant Utley. Plaintiff filed a reply in which he sought custody.
After hearing evidence, the trial court found that defendant Utley was a fit and proper person to have custody of the minor child and that it was in the child's best interest for her primary custody to be placed with defendant Utley. Plaintiff and defendant Riddick were each found to be fit and proper to have visitation with the child, and a visitation schedule was prescribed. Plaintiff appeals. We reverse and remand to the trial court for further proceedings.
This case involves the tension between a biological parent's right to custody of his or her child and the rights of the child to be placed in the custody of the person or entity which will meet the child's best interests. G.S. § 50-13.2(a) provides, in pertinent part:
An order for custody of a minor child entered pursuant to this section shall award the custody of such child to such person, agency, organization or institution as will best promote the interest and welfare of the child.
Relying on the often cited principle that the welfare of the child is the "polar star" by which courts are to be guided in custody disputes, see Wilson v. Wilson, 269 N.C. 676, 153 S.E.2d 349 (1967) (best interest of child is paramount consideration, to which even parental love must yield), Griffith v. Griffith, 240 N.C. 271, 81 S.E.2d 918 (1954), this Court has previously interpreted the statute as requiring the trial court to conduct a "best interest and welfare" analysis, even in custody disputes between a natural parent and a third party. Black v. Glawson, 114 N.C. App. 442, 442 S.E.2d 79 (1994); Best v. Best, 81 N.C. App. 337, 344 S.E.2d 363 (1986). These cases recognized a rebuttable presumption in favor of awarding custody to the natural parent, but held it unnecessary to prove the natural parent unfit in order to rebut the presumption and find that the best interest of the child would be served by awarding custody to the third party. Id.
In Petersen v. Rogers, 337 N.C. 397, 445 S.E.2d 901 (1994), however, our Supreme Court expressly disavowed this "best interest and welfare" analysis in custody disputes between natural parents and third parties. The Court squarely held "that absent a finding that parents (i) are unfit or (ii) have neglected the welfare of their children, the constitutionally-protected paramount right of parents to custody, care, and control of their children must prevail." Id. at 403-04, 445 S.E.2d at 905. Contrary to the position taken in the dissent, Petersen did not limit its holding to custody determinations where the child had previously been in an "intact family unit." See Bivins v. Cottle, 120 N.C. App. 467, ___ S.E.2d ___ (1995). In Bivins, however, we have interpreted Petersen as applying only to an initial custody determination, and not to motions for change of custody based on changed circumstances.
In the present case, an initial custody determination, the trial court conducted the "best interest and welfare" analysis, and based solely on that analysis, awarded custody of the minor child to defendant Utley rather than plaintiff, the child's natural parent. Under Petersen, the award of custody on this basis was error and must be reversed. However, the trial court made no findings with respect to the plaintiff father's fitness to have custody of his minor child or as to whether he had neglected her welfare, findings which Petersen instructs are necessary to an initial adjudication of custody in a dispute between a biological parent and a third party. Therefore, we must remand this case for such findings and a proper determination of custody in light thereof.
Reversed and remanded.
Judge GREENE dissents.
Judge WYNN concurs.