1. Child Support, Custody, and Visitation-custody — standing — grandparent — motion to dismiss

The trial court did not err by concluding that plaintiff maternal grandmother had standing to initiate an action for child custody on 28 February 2000 and by denying defendant father's Rule 12(b)(6) motion to dismiss, because: (1) grandparents alleging unfitness of their grandchildren's parents have a right to bring an initial suit for custody even if there is no ongoing custody proceeding; and (2) the allegations, including that defendant parents have not visited with the minor children on a regular basis and that defendants have not shown they are capable of meeting the needs of the children, state a claim upon which relief can be granted.

The trial court erred in a child custody case by performing a best interest of the child analysis between defendant father and plaintiff maternal grandmother and by granting plaintiff custody of the children based on the erroneous conclusion that defendant father acted inconsistently with his constitutionally protected status, because: (1) the trial court did not find that defendant abandoned his children, was unfit, or neglected the children; (2) it is inconsistent to grant the natural father full, free, and regular visitation and then conclude that he has acted inconsistently with his constitutionally protected status as a parent so as to forfeit that status; (3) there is no evidence to support the conclusions that defendant failed to be involved on a daily basis with the children or that he failed in his responsibilities and obligations of parenthood; (4) the record shows that the custody agreement leaving the children in the primary care of plaintiff maternal grandmother was temporary; (5) defendant maintained or attempted to maintain contact and support for his children, and he resumed custody when his circumstances permitted; (6) defendant voluntarily relinquished custody of the children to plaintiff since he believed at that time the interest of the minor children would be best served by placement with their grandmother, showing he put his children's interest ahead of his own; (7) defendant supported his children emotionally and financially despite the mother questioning defendant's fatherhood and plaintiff's refusing defendant visitation; and (8) the fact that a third party is able to offer the minor children a higher standard of living does not overcome a natural parent's paramount interest in the custody and control of the children.

Judge THOMAS dissenting.

TYSON, Judge.

In the fall of 1991, Jonathan Dewayne Byers ("defendant") and defendant Michelle Grindstaff Byers ("Michelle") engaged in a sexual relationship. Taylor Carrington Byers was born 17 September 1992 as a result. Defendant and Michelle married in November 1994. Tyson Christianson Byers was born of the marriage on 22 February 1997. Defendant and Michelle separated on or about 10 October 1998 and divorced on 21 December 1998.

Defendant and Michelle had a tumultuous relationship and marriage. In December of 1998, Michelle left defendant and moved into her mother's, Sarah G. Grindstaff's ("plaintiff"), home with both children. Michelle and the children subsequently moved into a mobile home, provided by plaintiff, in January 1999. The children visited plaintiff regularly between January 1999 and March 1999. Michelle moved into an apartment in April of 1999. Michelle and plaintiff agreed that the apartment was unsuitable for the children. The children stayed with plaintiff in her home. Michelle would call and visit. Defendant presented evidence that Michelle denied him access to the children from October 1998 through February 1999.

Defendant, Michelle, and plaintiff voluntarily executed a Custody Agreement and Power of Attorney ("Custody Agreement") on 18 May 1999. The Custody Agreement placed full care and custody of the children with plaintiff. At that time, defendant was working two jobs and did not have adequate room for the children. Michelle continued to live in an apartment unsuitable for the children.

The Custody Agreement: (1) stated that "the action of Mother and Father in performance of this agreement is not an act of abandonment of the minor children but rather demonstrates their desire to secure the best possible environment for the raising of the minor children," (2) provided a visitation schedule for defendant and Michelle, and (3) required defendant and Michelle to voluntarily enter into a child support agreement, the amount to be determined by the Buncombe County Child Support Enforcement Agency ("Enforcement Agency").

In June of 1999, defendant transferred with his employer to Mecklenburg County, North Carolina and moved into his parent's home located in Charlotte. The Enforcement Agency contacted defendant concerning child support payments. Defendant requested DNA blood group testing as a condition before he would continue to pay child support. Defendant testified that Michelle had informed him that he was not the biological father of the children. The Enforcement Agency filed a complaint to recover child support ("Child Support Complaint") from defendant on 7 October 1999. Defendant filed a motion on 3 January 2000 requesting DNA testing. As a result of his DNA request, defendant's relationship with plaintiff became strained.

Defendant visited the children on 26 February 2000 with plaintiff's permission and transported the children back to Charlotte. Defendant called plaintiff that evening and informed her that he would not be returning the children to her. On 27 February 2000, defendant caused plaintiff to be served with a "Revocation of Power of Attorney" and "Revocation of Special Power of Attorney."

Plaintiff filed a verified complaint against defendant and Michelle on 28 February 2000 asking the trial court "to determine custody of the minor children . . . [p]ursuant to N.C.G.S. § 50A-204." That same day the trial court issued an ex-parte "Order for Immediate Custody" (" Ex-parte Order") granting plaintiff "immediate and temporary custody" pending a return hearing on all custody issues. The Ex-parte Order authorized law enforcement officials to "assist the Plaintiff in regaining the physical custody of the minor children."

Defendant filed a verified answer, counterclaims, and a motion to dismiss on 6 March 2000. The answer admitted that the trial court had jurisdiction to determine custody of the minor children pursuant to G.S. §§ 50-13.2 and 50A-201, but denied that the trial court had jurisdiction to determine custody pursuant to 50A-204.

Defendant counterclaimed for "immediate and temporary and permanent physical and legal custody of the minor children." Defendant moved to dismiss plaintiff's complaint pursuant to Rule 12(b)(6).

A hearing for temporary custody was conducted on 6 March 2000. Defendant's 12(b)(6) motion was denied and the trial court filed a "Temporary Order for Custody/Visitation and Child Support" on 19 April 2000 ("Temporary Order"). The Temporary Order (1) consolidated the prior Enforcement Agency's child support action, (2) concluded that defendant was "a fit and proper person to have liberal visitation with his minor children and that it is in the best interest of the children that an Order issue granting the defendant liberal visitation with the minor children," (3) ordered that defendant and plaintiff have "temporary shared custody of the minor children with the children's primary residence being with plaintiff Sarah Grindstaff," (4) ordered defendant to pay $411.00 per month child support, (5) ordered defendant liberal visitation establishing a "minimum visitation" schedule, and (6) retained jurisdiction over the parties "for purposes of modification and/or enforcement of this Order." Plaintiff filed a reply to defendant's counterclaim on 4 April 2000.

A custody trial was held in August of 2000. The trial court entered a final Custody Order ("Final Order") making extensive findings of fact and conclusions of law and ordered that the "minor children . . . shall remain in the legal custody of Sarah Grindstaff." The Final Order granted defendant and Michelle visitation, and ordered them to "pay child support as heretofore ordered by the Court." Michelle, the children's mother, filed no pleadings with the trial court and does not appeal. Defendant appeals. We reverse the trial court's order and remand.

Defendant assigns as error the trial court's (1) failure to grant his Rule 12(b)(6) motion to dismiss and (2) applying the best interest of the child standard when the evidence would not support a determination that he had acted inconsistently with his constitutionally protected status as natural parent.

Defendant contends that plaintiff had no standing to initiate an action for custody on February 28, 2000 because no custody proceeding was ongoing and the minor children were in an "in-tact" family, and that plaintiff's claims were fatally defective warranting a Rule 12(b)(6) motion to dismiss. We disagree.

G.S. 50-13.1(a) states that:

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. . . .

N.C. Gen. Stat. § 50-13.1(a) (2001). Our court previously held that grandparents alleging unfitness of their grandchildren's parents have a right to bring an initial suit for custody, even if there is no ongoing custody proceeding. Sharp v. Sharp, 124 N.C. App. 357, 360-361, 477 S.E.2d 258, 260 (1996). G.S. 50-13.1, "is intended to cover `a myriad of situations in which custody disputes are involved' and its application is not `restricted to custody disputes involved in separation or divorce." Id. at 361, 477 S.E.2d at 260 (quoting Oxendine v. Catawba Cty. Dept. of Social Services, 303 N.C. 699, 706-07, 281 S.E.2d 370, 374-75 (1981)). We hold that plaintiff as grandmother of the children had standing to bring an action for custody.

"Although grandparents have the right to bring an initial suit for custody, they must still overcome the `constitutionally-protected paramount right of parents to custody, care, and control of their children.'" Sharp, 124 N.C. App. at 361, 477 S.E.2d at 260 (quoting Petersen v. Rogers, 337 N.C. 397, 403-04, 445 S.E.2d 901, 905) (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"). "While the best interest of the child standard would apply in custody disputes between two parents, in a dispute between parents and grandparents there must first be a finding that the parent is unfit." Sharp, 124 N.C. App. at 361, 477 S.E.2d at 260 (citing Petersen, 337 N.C. at 401-02, 445 S.E.2d at 903-04).

Plaintiff's complaint alleged in pertinent part that:

1. The Defendants have visited with the minor children but not on a regular and consistent schedule.

2. The Defendant have been [sic] preoccupied with their own lives and have not shown that they are capable of meeting the needs of the children for care and supervision.

When these allegations are viewed in the light most favorable to plaintiff and granting plaintiff the benefit of every reasonable inference, these allegations state a claim upon which relief could be granted. The trial court did not err by not granting defendant's Rule 12(b)(6) motion to dismiss. This assignment of error is overruled.

Defendant contends that the trial court's findings of fact do not support the legal conclusion that he acted inconsistently with his constitutionally protected status, and argues it was error for the trial court to perform a "best interest" of the child analysis. We agree.

The trial court concluded that:

The custody agreement entered into by the parties specifies that the parents were not abandoning the children by allowing them to live in the home of Sarah Grindstaff. The court concludes as a matter of law that it was not abandonment. . . . [and] the parents [sic] conduct was not neglect or abandonment. . . .

The trial court then concluded however that:

The parents have acted inconsistently with respect to their constitutionally protected right with regard to their children and therefore the appropriate standard for this Court in determining the issues of custody and visitation are "the best interest" of the minor children in light of all the facts and all the circumstances.

The trial court made extensive findings of fact in support of this conclusion. After thorough review, none of these findings of fact support the legal conclusion that defendant has acted inconsistently with his constitutionally protected status as natural parent of the children. The trial court did not find that defendant (1) abandoned his children, (2) was unfit, or (3) neglected the children.

The Temporary Custody order concluded that defendant "is a fit and proper person" and ordered that defendant and plaintiff share "temporary custody." See Raynor v. Odom, 124 N.C. App. 724, 478 S.E.2d 655 (1996) (held that trial court did not err in considering temporary custody orders in determining the issue of child custody).

The trial court's Final Order found that (1) "[o]nce in Charlotte [with defendant], the visitations that have occurred have gone reasonably well and the children have been engaging with various family members," (2) defendant is a reliable employee, (3) defendant has an excellent reputation at work, and (4) that defendant voluntarily placed the children in the home of plaintiff when he was unable to properly provide for them.

There is no evidence in the record showing that defendant acted inconsistently with his constitutionally protected status as the natural father. In its Temporary Order, the trial court concluded defendant was "a fit and proper person to have liberal visitation and that it is in the best interest of the children that an Order issue granting the defendant liberal visitation with the minor children" and awarded him "temporary shared custody of the minor children. . . ." with plaintiff. In its Final Order, the trial court granted defendant regular visitation. It is inconsistent to grant the natural father full, free, and regular visitation and then conclude that he has acted inconsistently with his constitutionally protected status as a parent so as to forfeit that status.

While there may be evidence to support the trial court's conclusions of law that defendant "willfully and intentionally left the children in the primary care of plaintiff," there is no evidence to support the conclusions that defendant "failed to be involved on a daily basis with the children," or that he "failed in [his] responsibilities and obligations of parenthood."

The conclusion that defendant "willfully and intentionally left the children in the primary care of plaintiff," under the facts of this case, is not sufficient to overcome defendant's constitutionally protected status.

Our Supreme Court has stated that:

there are circumstances where the responsibility of a parent to act in the best interest of his or her child would require a temporary relinquishment of custody, such as under a foster-parent agreement or during a period of service in the military, a period of poor health, or a search for employment. However, to preserve the constitutional protection of parental interests in such a situation, the parent should notify the custodian upon relinquishment of custody that the relinquishment is temporary, and the parent should avoid conduct inconsistent with the protected parental interests.

"[I]f defendant and plaintiff agreed that plaintiff would have custody of the child only for a temporary period of time and defendant sought custody at the end of that period, she would still enjoy a constitutionally protected status absent other conduct inconsistent with that status." Price, 346 N.C. at 83, 484 S.E.2d at 537 (citing Smith v. Organization of Foster Families, 431 U.S. 816, 53 L.Ed.2d 14 (holding that natural parents could not lose parental rights to foster parents where the foster agreement contemplates a surrender of custody for only a temporary period of time)).

The trial court did not make any finding of fact whether the Custody Agreement was temporary or permanent. The dissent states that "[w]hile the trial court did not find abandonment . . . such an agreement [the voluntary custody agreement] in itself fails to establish that there was no abandonment as a matter of law. Determination of abandonment is a factual issue which the court must make based upon the evidence presented at trial." The trial court expressly found however that defendant did not "abandon" or "neglect" the children by executing the Custody Agreement, and that "[t]here was no specified time that the children would remain in the custody of [plaintiff]." The trial court found that

[t]he parties understood and agreed that this arrangement was due to the fact that neither parent was capable of providing for the children in a suitable manner at that time. The father did not have adequate space for the children and his work hours were such that he would not be available to take care of the children.

Evidence exists in the record to show that the Custody Agreement was temporary. Defendant testified that it was his intent that the agreement was temporary. Michelle also testified that she thought the agreement was temporary. Plaintiff recognized the temporary nature of the agreement. In her complaint, plaintiff stated that she "does not intend to exclude the Defendants from having custody of the minor children at some time." The trial court's Final Order excluded defendant from having custody.

Plaintiff argues that defendant had:

no employment obligation to fulfill, no illness to overcome, and no task to complete. The parents surrendered the child with no clear justification for doing so, and no identifiable event would bring the parents to a state of readiness to have the children in their custody again. The parents merely resigned themselves to the belief that the children were better off with Sarah Grindstaff. This in not a situation worthy of the protection as contemplated by the Price court.

We disagree.

Price is not as narrow as plaintiff urges. The list of circumstances enumerated in Price is not exhaustive. "Such conduct would, of course, need to be viewed on a case-by-case basis, but may include failure to maintain personal contact with the child or failure to resume custody when able." Price, 346 N.C. at 83-84, 484 S.E.2d at 537.

Here, the evidence showed that defendant maintained or attempted to maintain contact and support for his children, and that he resumed custody when his circumstances permitted. Defendant voluntarily relinquished custody of the children to the plaintiff because he believed at that time "the interest of [the] minor children would be best served by placement with Grandmother." This act shows that defendant put his children's interest ahead of his own. Defendant should not be penalized for this action when he requests the return of his children only nine months later after he is more established and settled. The Custody Agreement was executed on 18 May 1999. Defendant revoked plaintiff's power of attorney and special power of attorney on 27 February 2000. Moreover, there is evidence in the record that defendant began to request full custody and return of his children in June of 1999. Defendant testified that plaintiff told him that he could not resume custody of his children until they were eleven or twelve-years-old.

The dissent emphasizes the trial court's findings of fact that defendant (1) "did precious little to visit the children for months at a time," (2) refused to enter into the voluntary support agreement, and (3) requested "paternity tests."

The evidence at trial showed that plaintiff refused to allow defendant visits with the children. Defendant's attorney, Carol Goins ("Goins") testified that defendant told her in late 1999 or early 2000 that plaintiff could not visit the children because plaintiff "wouldn't allow the vists." Plaintiff refused defendant visitation with his children because defendant requested a paternity test. Defendant requested a paternity test because Michelle told defendant that he was not the biological father of the children on many occasions solely for spite. Defendant's request was not unreasonable under the circumstances, nor did it constitute action inconsistent with his constitutionally protected status. There is overwhelming evidence in the record that defendant supported his children emotionally and financially, despite Michelle's questioning defendant's fatherhood, and plaintiff's refusing defendant visitation.

Defendant testified that (1) after defendant and Michelle separated, Michelle refused defendant visitation, (2) defendant supported the children financially, (3) defendant had regular visitation with the children through June 1999 when they were living with plaintiff, (4) defendant accompanied the children to the doctor and dentist, (5) defendant paid $3,017.50 for day care during 1999, (6) defendant maintained health insurance for the children and helped with their lunch money, clothing and medical expenses, (7) even when plaintiff refused to allow defendant to visit the children after he requested a paternity test, defendant continued to call the children regularly, (8) defendant requested return of the children in June of 1999, and plaintiff refused, (9) defendant wrote letters, sent gifts, and continued to maintain contact, (10) some letters were returned to defendant unopened, and (11) after defendant requested a paternity test, based on Michelle's revelation that defendant might not be the father of the children, plaintiff became angered and refused defendant visitation after he moved to Charlotte. We hold that there are no findings of fact that support the conclusion, and that there is no evidence in the record, that defendant acted inconsistent with his constitutionally protected status. The trial court erred by performing a "best interest" analysis as between defendant and plaintiff. "The fact that the third party is able to offer the minor child[ren] a higher standard of living does not overcome a natural parent's paramount interest in the custody and control of the child[ren]." Penland v. Harris, 135 N.C. App. 359, 362, 520 S.E.2d 105, 107 (1997) (citing Petersen, 337 N.C. 397, 445 S.E.2d 901).

Michelle, the children's mother, did not answer the complaint or file a counterclaim seeking custody. Defendant's counterclaim sought permanent custody of the children.

The record contains substantial evidence that plaintiff provided shelter, nurture, love, care and protection for her grandchildren at a time when both parents were unable to provide the children with life's necessities. We applaud plaintiff's actions, and understand the bond that develops between children and their extended family members, and the loss that is felt when daily interaction with the children ceases. Whatever may occur in the future, plaintiff has the singular pride and gratitude of her grandchildren for being there for them when they most needed stability in their lives. Both parents should well remember plaintiff's responsible actions on behalf of their children. Custody orders are subject to review if circumstances change or either natural parent engages in conduct that is inconsistent with their constitutionally protected status. Sharpe, 124 N.C. App. 357, 477 S.E.2d 258.

We reverse the order of the trial court granting plaintiff custody of the children and remand for entry of an order granting defendant custody of the children, and a hearing to determine reasonable visitation between plaintiff and Michelle as shall be in the best interests of the children.

Reversed and remanded.

Judge MARTIN concurs.

Judge THOMAS dissents.