Lambert v. Riddick

¶1dissenting.

¶2I disagree with the majority that Petersen v. Rogers, 337 N.C. 397, 445 S.E.2d 901 (1994), must be read as holding that whenever there is a child custody dispute between a natural parent and some third party, custody must be placed with the parent unless there is a showing that the parent is unfit or has neglected the welfare of the child. I do not believe the holding of Petersenis this broad.

¶3There is no question that Petersenuses broad language in relating the “constitutionally-protected paramount right of parents to custody, care, and control of their children.” Petersen at 403-04, 445 S.E.2d at 905. The Court, however, is specific in noting that it is “the family unit” that finds protection in the constitution. Petersen at 400, 445 S.E.2d at 903. In other words, the forced “breakup of a natural family” can constitutionally occur only upon a showing of parental unfitness. Quilloin v. Walcott, 434 U.S. 246, 254, 54 L. Ed. 2d 511, 520, reh’g denied, 435 U.S. 246, 54 L. Ed. 2d 511 (1978); Reno v. Flores, 507 U.S. 292, 304, 123 L. Ed. 2d 1, 18 (1993) (a child should “not be removed from the custody of its parents” absent a finding of parental unfitness). As most recently reiterated by our Supreme Court, it is parents *484living as an intact family with their children who are to be given additional protection from custody and visitation claims by third parties. McIntyre v. McIntyre, 341 N.C. 629, 461, S.E.2d 745 (1995) (unfitness of parents must be shown by grandparents who seek visitation of children living as intact family with parents); see Petersen at 405-06, 445 S.E.2d at 905 (parents who have lawful custody of their children are to be protected from custody and visitation claims from strangers).

¶4Thus when the parents have custody1 of their children and are living with them as an intact family2 or have lost custody as a result of some unlawful action by a third party (as was the situation in Petersen), a third party is not entitled to a custody decree without first showing that the parents are unfit or have neglected the children and that it would be in the best interest of the children to be with the third party. See Brake v. Mills, 270 N.C. 441, 443, 154 S.E.2d 526, 528 (1967) (“taking children from a parent’s custody” cannot be based on best interest). In those situations, however, where the parents do not have custody of the children and are seeking custody from a third party who has lawful custody (but no custody decree) of the children, an order must be entered awarding custody to such persons “as will best promote the interest and welfare of the child.” N.C.G.S. § 50-13.2(a) (1987).

¶5In this case it is not disputed that the child was born out of wedlock on 29 August 1991; the child has resided with Annette Utley (Utley) since birth; Edgar Lee Lambert, Jr. (father) had very minimal contact with the minor child during the first eight months of the child’s life and has since visited some with the child; the father and Lori Natasha Riddick (mother) agreed at the birth of the child that Utley would become the guardian of the child; Utley is a fit and proper person to be awarded custody of the child; and the father is a fit and proper person to have visitation with the child.

¶6There is no evidence that the father was living together with the child in an intact family unit at the time of this custody trial' or that the child had been removed from him unlawfully. Indeed the father had consented to the placement of the child with Utley and the child had lived in that home for approximately two years at the time the *485complaint for custody was filed. Thus the custody dispute between the father and Utley was properly resolved by the trial court using the best interest test of section 50-13.2(a). I would affirm the order of the trial court.