Hi. I am the defendant and mother to the child and the plaintiff is the grandmother. Long story short, been battling this since Sep of 2021. Prior to that I had signed a temporary power of attorney to grandparent as I had to serve 4 months in jail for a theft charge. Upon release, I attempted to get my daughter and plaintiff refused. I called law enforcement, I drove to NC from my home in GA to look for child, I traveled to a family reunion in hopes of finding her. Child was not there but plaintiff was and I made it very clear I wanted my child returned. 2 months later grandparent files petition for custody alleging ABANDONMENT! As well as neglect and that I couldn’t provide a home for her, that I had not participated in the daily care of child, and that I hadn’t had contact for at least 9 months! (even though I had just seen Plaintiff at reunion 2 months prior, looking for child). I filed ex parte and it was denied. I have not been found unfit or to have acted inconsistent . Temp hearing was in Jan. 2023 and order was joint legal custody with grandparent having primary physical custody and me visitation every other weekend. Which I have taken full use of to date living 6 hours away. I have passed multiple drug tests. Permanent hearing was in the 19th of this month and still waiting for ruling. However, prior to trial, I had filed a Motion to Dismiss(subject matter jurisdiction and failure to state a claim), or in the Alternative, for Summary Judgement on November 20 of last year. I also filed an amended MTD/SJ with a Memorandum in Support of, an Affidavit in Support of, and relevant exhibits referenced in the latter two 10 days prior to the hearing. There was never a response by opposing party. I expected it would be addressed at trial, however it was not. I asked about it at the beginning of the hearing but the judge said something that I didn’t understand. As in I didn’t comprehend. And then things moved along as if I’d never even made the filings. I’m not quite sure what to make of this. Doesmt it have to be addressed? And if opposing attorney wanted to make oral argument, aren’t I supposed to get chance at rebuttal? And the fact that opposing party never filed any opposition or made oral argument mean that judge should grant the relief requested? if I have to appeal, where does the MTD/SJ fit into the appeal?
Your motions would have needed to be calendared for the same date as the trial date in order for the judge to hear the motions. Simply filing them motions but not calendaring them for a trial date (with a notice of hearing) is not sufficient to put them on the calendar before the judge.
The court will have subject matter jurisdiction in a custody case if the child has resided in the State of NC for the six months prior to the filing of the action.
Summary judgment, which is judgment based on the pleadings only, is not proper in custody cases because a judge cannot determine the specific custody-related issues and determine what is in the best interests of the minor child without hearing testimony and evidence presented.
A response to motions to dismiss or motions for summary judgment are not required to be filed.
At the end of a trial during closing arguments, the party who is bringing the case, or the party who initiated the claim, makes closing arguments last.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
MTD was for lack of standing and I talked to the family court coordinator when I filed them and she told me it’d be on calendar for trial. And the judicial notice of hearing I received had it listed as one of the issues to be discussed. Plus, best interest of the child standard is not supposed to be used unless Ive been found unfit, etc as this is against a third party.
A judge must always determine custody based on the best interest of the minor child. There is no difference whether a custody action is between two parents or one parent and a non-parent.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.
Actions between a Parent and a Nonparent (Third-Party Custody)
Summary.
Parents have a constitutional right to the exclusive care, custody and control of their minor children. [Price v. Howard, 346 N.C. 68, 484 S.E.2d 528 (1997); Petersen v. Rog-ers, 337 N.C. 397, 445 S.E.2d 901 (1994).]
From the Judges Bench book. Please explain your comment claiming best interest is always used no matter what because I’m confused. Clearly, this states otherwise.
“Because of the constitutional rights of parents, a trial court cannot consider the best interest of the child in a case between a parent and a nonparent unless the trial court concludes that the parent has waived his constitutional rights. [Price v. Howard, 346
C. 68, 484 S.E.2d 528 (1997) (parent waives constitutional protection by being unfit, neglecting the welfare of the child, or other acts inconsistent with her pro-tected status as a parent).]
In a case between two parents and a nonparent, a trial court cannot apply best inter-est test to determine custody unless both parents have waived their constitutional right to custody. [See Chavez v. Wadlington, 821 S.E.2d 289 (N.C. Ct. App. 2018).]”
The best interest of the minor child is the standard that judges use when determining custody. There are a myriad of other considerations a court must make when a custody case is between a parent and nonparent/third party.
I cannot determine what the judge may have done or may have been thinking without having heard all of the evidence and all of the facts in your specific situation. Custody cases are very case-specific and there is no “one size fits all” in custody determinations.
Anna Ayscue
Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest
Rosen Online | Unlimited confidential access to a North Carolina attorney for $199/mo - click here
The response posted above is based upon the limited factual information made available and is not intended as a full and complete response to the question. The only reliable manner to obtain complete and adequate legal advice is to consult with an attorney, fully explain your situation, and allow the attorney sufficient opportunity to research the applicable law and facts required to render an accurate opinion. The basic information provided above is intended as a public service only, a full discussion with an attorney should be undertaken before taking any action. The information posted on this forum is available for public viewing and is not intended to create an attorney client relationship with any individual. These answers are provided for informational purposes only, a person should consult with their own individual legal counsel before taking any action that could affect their legal rights or obligations.