Reeves v. Tolen

• Court: Court of Appeals of North Carolina
• Decided: May 6, 2026
• Docket: 24-1128
• Status: Unpublished

Opinion

An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

IN THE COURT OF APPEALS OF NORTH CAROLINA

No. COA 24-1128

Filed 6 May 2026

Moore County, No. 21CVD001254-620

WANDA GAIL REEVES, Plaintiff,

v.

CHRISTOPHER TOLEN and KRISTI REEVES TOLEN, Defendants.

Appeal by Defendant Kristi Reeves Tolen from order entered 18 April 2024 by

Judge Warren McSweeney in Moore County District Court. Heard in the Court of

Appeals 26 August 2025.

Van Camp & Van O’Linda, PLLC, by Claire C. Washburn and William M. Van O’Linda, Jr. for plaintiff-appellee.

No brief for Christopher Tolen, pro se defendant-appellant.

Kristi Reeves Tolen, pro se defendant-appellant.

PER CURIAM.

Defendant Kristi Reeves Tolen (“Mother”) appeals from order granting

permanent child custody to her mother, Plaintiff Wanda Gail Reeves

(“Grandmother”). Mother challenges subject matter jurisdiction of the trial court to REEVES V. TOLEN

Opinion of the Court

act; and, alternatively, she argues the trial court erred in various ways in its order;

for instance, that the trial court improperly concluded that Mother had acted

inconsistently with her parental rights. For the foregoing reasons, we conclude the

trial court properly exercised subject matter jurisdiction, but we vacate and remand

on the remaining issues.

I. Background

Defendants are the biological parents of Riley (a pseudonym), born in 2016.

Defendants served as the primary caregivers for Riley in Georgia until December

2019 when Defendants were arrested on theft-related charges. Around the time of

her arrest, Mother voluntarily executed and recorded a Power of Attorney in favor of

Grandmother, granting her the exclusive care and parental rights of Riley,

whereupon Riley began living with her in North Carolina.

Mother was subsequently sentenced in April 2020 to a five-year suspended

sentence, supervised probation, a $1,000 fine, and an active split sentence of 180 days.

In September 2021, Grandmother filed an action in Moore County District

Court seeking custody of Riley. For over two years, between June 2020 and November

2022, Mother had no physical contact with Riley, she did not provide Grandmother

with any financial support for Riley’s care, she took no legal action to try to regain

custody of Riley, and she did not provide a living place for Riley.

On 12 October 2021, the trial court entered an Order denying Ex Parte Custody

Motion in response to Mother’s motion. In this Order, the trial court found that North

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Carolina was the home state of Riley and that the court had jurisdiction under the

UCCJEA. The trial court also noted that Mother had granted a Power of Attorney

for Custody of a Minor Child which was filed in Jones County, Georgia, in December

2019. The findings in this order included the fact that Mother “left the child with

[Grandmother] during and after her release from prison in the State of Georgia.”

On 1 November 2022, the trial court entered handwritten memorandum of

Judgment/Order regarding custody and visitation, by consent. The Memorandum

Order was entered without prejudice. Under this Memorandum Order, beginning in

November 2022, Mother began having supervised visits with Riley for several hours

every other weekend in North Carolina, driving six hours each way from her home in

Georgia. Mother was late on multiple occasions for these visitations and maintained

sporadic communication with Riley during this time. On 16 November 2022, the trial

court entered a formal consent order based on the Memorandum Order.

As of April 2024, Mother resided with an individual who tested positive for

methamphetamine in summer 2022, despite Mother’s previous substance use issues.

In April 2024, after a hearing on the matter, the trial court entered an order

ending the temporary custody arrangement between Grandmother and Mother and

granted sole legal and primary physical custody to Grandmother, providing Mother

with unsupervised visits. In this permanent custody order, the trial court found

Mother acted inconsistent with her constitutionally protected rights. Additionally,

the court found that Riley was doing well in speech therapy in North Carolina, was

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attending school in North Carolina, and was supported by family and community

members in North Carolina. Mother appeals.

II. Analysis

Mother presents four arguments on appeal. We address the first issue of

whether there is subject matter jurisdiction and vacate and remand on the remaining

three issues because it is not clear from the permanent custody order whether the

trial court applied the clear and convincing standard of proof applicable in a custody

case between a parent and non-parent. Adams v. Tessener, 354 N.C. 57, 63 (2001)

(determining whether a parent has acted inconsistent with her constitutionally

protected status must be reviewed under a clear, cogent, and convincing standard);

Bennett v. Hawks, 170 N.C. App. 426, 428 (2005) (custody order must indicate the

court applied the clear and convincing standard in determining whether a parent’s

conduct is inconsistent with her constitutionally protected status).

A. Subject Matter Jurisdiction

We first address Mother’s argument that North Carolina lacks subject matter

jurisdiction over the custody determination and visitation schedule regarding Riley,

as she resides in Georgia, on two separate grounds, which we address in turn. In

addressing Mother’s arguments, we note a determination of subject matter

jurisdiction at the trial court level is a question of law, reviewed de novo on appeal.

In re A.L.L., 376 N.C. 99, 101 (citation omitted). De novo review permits our Court

to consider the matter “anew and freely substitute[ ] its own judgment for that of the

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trial court.” In re K.S., 380 N.C. 60, 64 (2022) (citation omitted) (cleaned up).

1. Home State

Mother contends Georgia, and not North Carolina, has exclusive jurisdiction

over Riley’s custody.

The Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”)

governs jurisdiction. See N.C.G.S. § 50A-101. The UCCJEA as adopted in North

Carolina provides that a trial court has subject matter jurisdiction to enter an initial

child custody order when the state is the “home state” of the child when the

proceeding starts, or within six months prior to commencement of the proceeding. Id.

§ 50A-201(a)(1). A child’s “home state” is where the child resides with a parent or a

“person acting as a parent” for a minimum of six months preceding the filing of the

case. Id. § 50A-102(7). A “person acting as a parent” is a person, not a parent, who

both:

(a) Has physical custody of the child or has had physical custody for a period of six consecutive months, including any temporary absence, within one year immediately before the commencement of a child-custody proceeding; and

(b) Has been awarded legal custody by a court or claims a right to legal custody under the law of this State.

Id. § 50A-102(13). It is a central tenet of the UCCJEA to prioritize a child’s home

state to avoid jurisdictional conflicts in child custody matters. Sulier v. Veneskey, 285

N.C. App. 644, 666 (2022) (citation omitted).

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Temporary absences are included as part of the six-month period preceding the

commencement of child custody proceeding to determine a child’s home state.

N.C.G.S. § 50A-102(7). An absence from a state constitutes “temporary absence” on

a case-by-case basis. See, e.g., Pheasant v. McKibben, 100 N.C. App. 379, 384 (1990).

North Carolina uses a totality of circumstances approach to determine whether an

absence was temporary. See Chick v. Chick, 164 N.C. App. 444, 449–50 (2004).

Factors considered in the totality of the circumstances approach include: (a) the facts

of each case; (b) the parties’ intent and length of absence as deemed important by any

sister states in making a temporary absence determination; and (c) any additional

circumstances “that may be presented in the multiplicity of factual settings in which

child custody jurisdictional issues may arise.” See id. at 450.

We disagree with Mother’s argument. First, we note Grandmother is a “person

acting as a parent” under the UCCJEA. She maintains physical custody over Riley

and has done so since the execution of the Power of Attorney. Subsequently, a

temporary custody order entered on 27 March 2023, awarded Grandmother primary

physical custody and joint legal custody. Subject matter jurisdiction is determined at

the time of filing of the proceeding, and Riley had been living in North Carolina with

Grandmother since December 2019.

Second, there is no question Riley was living in North Carolina for the required

six months prior to the commencement of the Grandmother’s custody proceedings. It

is uncontested Riley has not resided in Georgia, where Mother presently resides,

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since approximately December 2019. Based on the record before us, we conclude the

trial court did not err by determining that North Carolina is Riley’s home state.

Likewise, even if North Carolina declined to exercise home state jurisdiction

under G.S. 50A-207 or G.S. 50A-208, or there was no home state, North Carolina

would maintain jurisdiction under the significant connection test. That is, when

there is no home state under G.S. 50A-201(a)(1) or a court declines to exercise

jurisdiction, a court may look to the state with a significant connection to the child.

See id. § 50A-201(a)(2). The state with a significant connection is a state the child

and a parent or a person acting as a parent have a significant connection beyond

physical presence, and substantial evidence is present in the state regarding “the

child’s care, protection, training, and personal relationships[.]” Id. § 50A-201(a)(2)(b).

Under the significant connection test, North Carolina remains the proper state

to exercise jurisdiction. First, Riley resides in North Carolina with Grandmother who

is a “person acting as a parent.” Second, Riley has resided with Grandmother in

North Carolina since December 2019, is enrolled in school in North Carolina, and

Grandmother has provided all financial support for Riley’s care and maintenance

since December 2019. Additionally, Riley is attending speech therapy in North

Carolina and has family members in the North Carolina community assisting with

her care. Therefore, even if jurisdiction was declined or there was no home state,

North Carolina would remain the proper state to exercise jurisdiction in this case

under the significant connection test.

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2. Unjustifiable Conduct

Alternatively, Mother contends the trial court should have declined to exercise

jurisdiction under G.S. 50A-208(a) due to Grandmother’s “unjustifiable conduct.”

Regarding “unjustifiable conduct” and jurisdiction, G.S. 50A-208(a) states:

Except as otherwise provided in G.S. 50A-204 or by other law of this State, if a court of this State has jurisdiction under this Article because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction[.]

Id. § 50A-208(a). This statute does not prevent a North Carolina court from

exercising jurisdiction when any one of three exceptions apply. See id. § 50A-

208(a)(1)–(3). The third exception states: G.S. 50A-208(a) will not apply when “[n]o

court of any other state would have jurisdiction under the criteria specified in G.S.

50A-201 through 50A-203.” Id. § 50A-208(a)(3). This exception applies here.

Under the third exception, North Carolina is the only proper state to exercise

jurisdiction in this case. Pursuant to an initial custody determination, a state may

exercise jurisdiction as the home state or under the significant connection test. See

id. § 50A-201. If a state declines to exercise home state jurisdiction and/or there is

no state with a significant connection, the more appropriate forum under G.S. 50A-

207 or G.S. 50A-208 may exercise jurisdiction. See id. at § 50A-201(a)(3). Lastly, if

no court of any state has jurisdiction, then a court may exercise jurisdiction in its

discretion. Id. at § 50A-201(a)(4).

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As previously stated, North Carolina is the home state under G.S. 50A-

201(a)(1). Even if North Carolina was not the home state or declined to exercise such,

it would be the state with the significant connection making an exercise of jurisdiction

proper. See id. § 50A-201(a)(2). Similarly, G.S. 50A-201(a)(3) and G.S. 50A-201(a)(4)

are inapplicable as North Carolina may exercising jurisdiction under N.C.G.S. § 50A-

201(a)(1)-(2). Similarly, North Carolina remains the proper state to exercise

jurisdiction under G.S. 50A-202 (exclusive, continuing jurisdiction) or G.S. 50A-203

(jurisdiction to modify determination). Therefore, because North Carolina is the only

proper state to exercise jurisdiction, even assuming Grandmother engaged in

“unjustifiable conduct,” the jurisdictional bar of G.S. 50A-208(a) cannot be invoked.

Thus, on de novo review, we conclude the trial court correctly determined

North Carolina has jurisdiction under the UCCJEA regarding the child custody

determination and visitation of Riley.

B. Waiver of Constitutionally Protected Parental Rights

Next, Mother makes several arguments concerning the permanent custody

order. We address Mother’s argument that because the Power of Attorney was

temporary, she did not act inconsistent with her constitutionally protected parental

rights and voluntarily waive them. Regardless of Mother’s argument, because the

trial court’s order is unclear as to whether the trial court applied the “clear and

convincing” standard, we vacate the order and remand for findings of fact consistent

therewith. Indeed, our Supreme Court has held that it must be apparent that the

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trial court determined a parent acted inconsistent with her constitutional rights by

“clear and convincing” evidence. David N. v. Jason N., 359 N.C. 303, 307 (2005). And

we have vacated an order and remanded for additional findings where the trial court

failed to state that it had made its determination based on the “clear and convincing”

standard. Bennett, 170 N.C. App. at 429.

Because Mother’s remaining two arguments rely in part on the trial court’s

conclusion that Mother acted inconsistent with her constitutionally protected status,

we decline to address them.

III. Conclusion

We conclude the trial court properly exercised subject matter jurisdiction

under the UCCJEA and no unjustifiable conduct under G.S. § 50A-208(a) otherwise

bars jurisdiction. The trial court, however, failed to state that it applied the clear and

convincing standard in the permanent order as to whether Mother acted inconsistent

with her constitutionally protected status. Thus, we must vacate the order and

remand on the remaining issues for findings of fact consistent with this standard of

evidence.

VACATED AND REMANDED.

Panel consisting of Chief Judge DILLON and Judges STROUD and GORE.

Report per Rule 30(e).

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