Filed 18 June 1996
Parent and Child § 24 (NCI4th) — custody dispute between natural parent and care giver — right of parent to custody A custody dispute between a natural parent and a person who receives a minor child into his home and openly holds out that child as his biological child, but who was excluded as the father by a court-ordered paternity test, is not to be determined according to the "best interests of the child" standard; rather, the court should apply the rule of Petersen v. Rogers, 337 N.C. 397, that, absent a finding that natural parents are unfit or have neglected the welfare of their children, the constitutionally protected paramount right of parents to custody, care, and control of their children must prevail.
Am Jur 2d, Parent and Child §§ 23, 28.
Right of putative father to custody of illegitimate child. 45 ALR3d 216.
Appeal by plaintiff from order signed 28 March 1995 by Judge Richard G. Chaney in Durham County District Court. Heard in the Court of Appeals 19 April 1996.
Ann Marie Vosburg for plaintiff-appellant.
Mildred T. Hardy for defendant-appellee.
Judge JOHN concurring in the result.
Judge GREENE dissenting.
Plaintiff, Stacy L. Price, appeals from the trial court's order granting defendant, Robin Howard, sole custody of Dominique Price.
Plaintiff and defendant lived together from approximately November 1985 until some time in 1989. The couple never married. A child, Dominique Price, was born to defendant on 10 June 1986, during the time plaintiff and defendant lived together in Durham, North Carolina. From the time of her birth, plaintiff held out the child as his biological child and the child believed plaintiff was her biological father. Plaintiff and defendant separated during 1989, with defendant remaining in the Durham area, until the summer of 1991, when defendant moved to Eden, North Carolina. After the separation in 1989, plaintiff became an "equal caretaker" of the child and in some instances the "primary" caretaker. After defendant's 1991 move to Eden, Dominique remained with plaintiff in Durham. In 1992, plaintiff sought sole custody of the child, at which time defendant denied plaintiff was the child's biological father. A court-ordered paternity test excluded plaintiff as the father. At the request of plaintiff, joined in by defendant, the trial court appointed Kristi Olson (Olson) "to serve as Advocate for Dominique." The order of appointment granted Olson "standing to do any act consistent with representing the best interests of the child." She was to be notified of "all hearings, proceedings, interviews, depositions and the like, and shall have [the] right to be present at all these." Finally, Olson was directed to "report to the Court as necessary, with copies of written reports to the respective attorneys of the parties, as circumstances require."
On 29 March 1995 the trial court entered its final order in this action. In that order, the trial court concluded that although "both the Plaintiff and Defendant are fit and proper persons to exercise the exclusive care and custody of the minor child," "it is in the minor child's best interest that she be in the primary physical custody of the Plaintiff." Nonetheless, the trial court concluded that because there was no evidence defendant was unfit or had neglected the child and because, as the trial court implicitly found, plaintiff was not the biological father of the child, the ruling in Petersen v. Rogers, 337 N.C. 397, 445 S.E.2d 901 (1994) did not permit an award of custody to plaintiff. The trial court ordered that defendant be "awarded the exclusive care, custody and control of" the child.
On appeal plaintiff first alleges the trial court erred in finding defendant was a "fit and proper" person to care for the child and had not neglected the child because the findings were not supported by the evidence. The record, however, discloses ample evidence to support the trial court's findings and, accordingly, they are binding on appeal, Blackley v. Blackley, 285 N.C. 358, 362, 204 S.E.2d 678, 681 (1974).
The question for resolution, therefore, is whether a custody dispute between a natural parent and a person who receives a minor child into his home and openly holds out that child as his biological child is to be determined according to the "best interests of the child" standard.
In Petersen v. Rogers, 337 N.C. 397, 445 S.E.2d 901, our Supreme Court held "absent a finding that [natural] 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 403-404, 445 S.E.2d at 905. See also Lambert v. Riddick, 120 N.C. App. 480, 482, 462 S.E.2d 835, 836 (1995); Bivens v. Cottle, 120 N.C. App. 467, 468, 462 S.E.2d 829, 830 (1995), disc. review allowed, 342 N.C. 651, 467 S.E.2d 704, appeal retained and disc. review allowed, 342 N.C. 651, 467 S.E.2d 898 (1996) ; Speaks v. Fanek, 122 N.C. App. 389, ___, 470 S.E.2d 82, 83 (1996).
In the case before us, the evidence tends to show plaintiff and defendant were involved in an intimate relationship before and after the child's birth. During the course of their relationship, the unmarried couple lived together with the child. Because, absent a finding of unfitness or neglect, "the constitutionally-protected paramount right of parents to custody, care, and control of their children must prevail," Petersen, 337 N.C. at 403-404, 445 S.E.2d at 905, the trial court did not err in awarding custody to defendant.
In plaintiff's final assignment of error, he argues the trial court erred in finding he must share in "all uninsured costs for [the child's] therapy. . . ." We agree and, accordingly, reverse that portion of the order. See Boyd v. Boyd, 81 N.C. App. 71, 77-78, 343 S.E.2d 581, 585-586 (1986) (support for minor children is a parental obligation).
Affirmed in part and reversed in part.
Judge JOHN concurs in the result with separate opinion.
Judge GREENE dissents.