Sides v. Ikner

730 S.E.2d 844, 222 N.C. App. 538, 2012 WL 3568959, 2012 N.C. App. LEXIS 1029
CourtCourt of Appeals of North Carolina
DecidedAugust 21, 2012
DocketNo. COA12-165
StatusPublished
Cited by3 cases

This text of 730 S.E.2d 844 (Sides v. Ikner) 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
Sides v. Ikner, 730 S.E.2d 844, 222 N.C. App. 538, 2012 WL 3568959, 2012 N.C. App. LEXIS 1029 (N.C. Ct. App. 2012).

Opinion

STROUD, Judge.

This appeal arises from a custody dispute between plaintiff, father of Luke1 (“Father”), the minor child, and intervenor, maternal grandmother of Luke (“Grandmother”). The trial court awarded Grandmother primary physical custody of Luke and Father secondary physical custody. Father appealed. For the following reasons, we conclude that the trial court erred in concluding that Father “acted inconsistently with [his] parental rights and responsibilities and [his] constitutionally protected status[;]” thus, this case is reversed and remanded for entry of an order consistent with this opinion.

I. Background

This case began when Father filed a complaint against Defendant, Luke’s mother, seeking custody of Luke on 17 November 2006. Father and Defendant agreed to an order entered on 2 April 2007 (“2007 Custody Order”) which stated “[t]hat the parties share joint legal cus[540]*540tody with the Defendant having primary physical custody and the Plaintiff having secondary physical custody[.]” The 2007 Custody Order set forth a detailed custodial schedule for the parents that gave Father physical custody on alternating weekends and holidays such as Easter, Thanksgiving, Christmas; all Father’s Days; and four weeks in summer. The 2007 Custody Order also contained other detailed provisions regarding Luke’s physical custody which are pertinent to the issues raised in this case:

4. All exchanges of the minor child shall occur at the Lillington McDonald’s. The parties agree and consent that because of their work schedules that either of the parties spouses or family members are authorized to conduct the exchanges.
5. Neither party shall allow the minor child to call the party’s significant other “Mom”, “Dad”, or similar appellation. Nor shall either party allow any third party to refer to the party’s significant other by such appellation. Each party shall make sure that they have explained this provision to their significant other and to their family members.

9. That the following provisions shall apply:

a. The parties must agree with respect to major decisions concerning the health, education, religious training, extracurricular activities and general welfare of the minor child[]. Day to day decisions of lesser import shall be made by the party having custody of the minor child[] at the time the need for the decision arises;
b. Each party shall have direct access to the health care providers, teachers, counselors and religious advisors of the minor children the same as if she or he was the sole custodian of the child[];
c. Each party shall have the right to authorize medical treatment for the minor child[]. Any party making appointments for the minor child[] with any doctor shall notify the other party of the appointment as soon as it is made so that party may be allowed to go to the appointment. Each party shall have to provide their own transportation;
d. Each party shall notify the other of any emergency situation involving . . . the minor child[] as soon as practicable;
[541]*541e. Each party shall keep the other apprised at all times of their current residence address and all telephone numbers and shall promptly notify the other of any changes to the same within 5 days of said changes. Additionally, each party shall provide the other with their address, phone numbers and a list of who resides with them on March 27, 2007 and the parties have done so.
f. Neither party shall make plans for the minor child[] or schedule activities for the minor child[] during the other party’s designated times without the prior permission of the other party;
g. Neither party shall threaten to withhold the minor child[] from the other party, to extend their designated time with the minor child[] or refuse to return the minor child[] at the end of their designated time with the child[];
[i.] Each party shall have reasonable telephonic access to the minor child[] when in the care of the other party;
j. Each party may take the minor child[] outside of the state of North Carolina during their designated times with the child[] however, the party removing the minor child[] from the state of North Carolina shall provide to the other party prior notification of this trip and shall provide the other party with contact information for the minor child[];
k. If either party shall relocate more than fifty (50) miles from their current residence, they shall give the other 60 days notice and the parties may motion the court to review the issues of custody or visitation if they are unable to resolve the matters between themselves;
n. Both parties shall make each and every term of this Order regarding the custody and care of the minor children known to any future spouse, the minor child[]’s grandparents, aunts and uncles, and shall encourage all such persons to act in accordance therewith.

(Emphasis added.)

[542]*542On 28 May 2010, Grandmother filed a motion to intervene in the custody case between Father and .Defendant. On 8 July 2010, Father filed a motion to modify custody and a motion to dismiss Grandmother’s motion to intervene. On 4 August 2010, Grandmother filed a “SUPPLEMENT TO MOTION” to her prior motion to intervene, stating that

[a]t the time of said filing, the proposed Intervenor truly believed the Plaintiff would consent to custody being placed with her. As such, the proposed Intervenor, while properly alleging that the Plaintiff “acted inconsistently with his constitutionally protected status as a parent,” intentionally did not use that specific phrase. Nor did she set forth all facts over the past two or more years that support that contention.

The supplement went on to allege the facts Grandmother claimed supported her contentions. On 1 December 2010, after a hearing, the trial court entered an order (“intervention order”) . allowing Grandmother’s motion to intervene and denying Father’s motion to dismiss Grandmother’s motion to intervene.

On 2 December 2010, Grandmother filed a motion for custody. On 30 August 2011, after a hearing, the trial court entered an order (“custody order”), including the following findings of fact:

1. That the Plaintiff and Defendant are the parents of minor child namely: . . . [Luke], born May 1, 2004.
2. That the Intervenor is the maternal grandmother of the minor child and resides in Harnett County, N.C.
3. That the Plaintiff is the natural father of the minor child and resides in Rowan County, N.C.
4. On April 2, 2007 an order was entered in this cause ordering that the Plaintiff and Defendant share joint legal custody of the minor child, . . . [Luke] born on May 1, 2004 with the Defendant having primary physical custody of the minor child and the Plaintiff having secondary physical custody in the form of visitation as set forth in the April 2, 2007 order.
7.

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Cite This Page — Counsel Stack

Bluebook (online)
730 S.E.2d 844, 222 N.C. App. 538, 2012 WL 3568959, 2012 N.C. App. LEXIS 1029, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sides-v-ikner-ncctapp-2012.