In re DiMatteo

Court of Appeals of North Carolina

In re DiMatteo

303 S.E.2d 84, 62 N.C. App. 571, 1983 N.C. App. LEXIS 2934

CourtCourt of Appeals of North Carolina

DecidedJune 7, 1983

DocketNo. 822DC781

StatusPublished

Cited by7 cases

This text of 303 S.E.2d 84 (In re DiMatteo) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re DiMatteo, 303 S.E.2d 84, 62 N.C. App. 571, 1983 N.C. App. LEXIS 2934 (N.C. Ct. App. 1983).

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Opinion

ARNOLD, Judge.

G.S. 5043.2(a) provides:

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, in the opinion of the judge, best promote the interest and welfare of the child. An order awarding custody must contain findings of fact which support the determination by the judge of the best interest of the child.

The rule in these cases in North Carolina is that the welfare of the child is the polar star by which the court’s decision must be governed. 3 R. Lee, N.C. Family Law, Sec. 224 (4th ed. 1981); e.g., Green v. Green, 54 N.C. App. 571, 572, 284 S.E. 2d 171, 173 (1981).

The respondent attacks the order on the basis of the trial judge’s statement that:

[I]t is not a question of whether these two children have been cared for in the best possible manner since October of 1981, and it’s not even a question as to whether or not the present foster care arrangement might be better than the custody of the father. The evidence is that the father’s home is fit and proper. He is the proper person. That being the [573]*573case, isn’t he, as a matter of law, entitled to custody of this child?

Although this statement expressed the principle that the natural parent of a child is presumed to be the appropriate custodian of that child, In re Kowalzek, 37 N.C. App. 364, 367, 246 S.E. 2d 45, 47, disc. rev. denied, 295 N.C. 734, 248 S.E. 2d 863 (1978), the trial judge’s statement reflected a misapprehension of the law. We cannot affirm an order without a clear indication that it rested on a determination of what would be in John’s best interest. That is the paramount consideration in custody cases.

Reversed.

Judges Webb and Braswell concur.

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ARNOLD, Judge.

G.S. 5043.2(a) provides:

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, in the opinion of the judge, best promote the interest and welfare of the child. An order awarding custody must contain findings of fact which support the determination by the judge of the best interest of the child.

The rule in these cases in North Carolina is that the welfare of the child is the polar star by which the court’s decision must be governed. 3 R. Lee, N.C. Family Law, Sec. 224 (4th ed. 1981); e.g., Green v. Green, 54 N.C. App. 571, 572, 284 S.E. 2d 171, 173 (1981).

The respondent attacks the order on the basis of the trial judge’s statement that:

[I]t is not a question of whether these two children have been cared for in the best possible manner since October of 1981, and it’s not even a question as to whether or not the present foster care arrangement might be better than the custody of the father. The evidence is that the father’s home is fit and proper. He is the proper person. That being the [573]*573case, isn’t he, as a matter of law, entitled to custody of this child?

Although this statement expressed the principle that the natural parent of a child is presumed to be the appropriate custodian of that child, In re Kowalzek, 37 N.C. App. 364, 367, 246 S.E. 2d 45, 47, disc. rev. denied, 295 N.C. 734, 248 S.E. 2d 863 (1978), the trial judge’s statement reflected a misapprehension of the law. We cannot affirm an order without a clear indication that it rested on a determination of what would be in John’s best interest. That is the paramount consideration in custody cases.

Reversed.

Judges Webb and Braswell concur.

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Bluebook (online)

303 S.E.2d 84, 62 N.C. App. 571, 1983 N.C. App. LEXIS 2934, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-dimatteo-ncctapp-1983.

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