Appellate Record

Rik Lovett has an impressive 4-2 record in cases he has appealed:

Lambert v Riddick 120 N.C. App. 480, 462 S.E. 2d 835 (1995)

Established right of biological parent, in an initial child custody determination against a non-parent, to physical custody of their child as long as the biological parent has not committed abuse or neglect.

Pulliam v Smith 348 N.C. 616, 501 S.E. 2d 898 (1998)

Co-authored amicus brief in this Supreme Court of N.C. decision establishing a new and different way to modify an existing custody order. Prior to this case, a party attempting to change a custody order had to first show a substantial change in circumstances and that the child or children were being negatively impacted. After this decision, a party attempting to change a custody order could also show a substantial change in circumstances and a positive impact on a child or children and have the court consider custody modification on that basis.

In re Byrd ex rel. Adoption of Byrd 137
N.C. App. 623, 529 S.E.2d 465 (2000)

In re Adoption of Byrd 354 N.C. 188,
552 S.E. 2d 142 (2001)

Co-authored amicus brief in this Supreme Court of N.C. decision which made it much easier for adoptive parents to finalize their adoptions without interference from uninvolved unwed fathers. As a result of this case, if unwed fathers do not provide consistent financial support and show some degree of interest in the mother’s well-being or legitimate their children prior to the birth of the child, they have no rights to prevent an adoption once a child has been placed with an adoptive parent.

Page v. McCabe

This was an appeal involving the dismissal of a motion to modify child custody.  At the time of the original custody order, the parties both lived in Wake County.  Subsequent to the entry of the original custody order, Plaintiff/Father moved to New Hanover County (Wilmington), which was more centrally located for his work.  Because the original custody order did not provide for an exchange location, Defendant/Mother required Father to drive all the way to Wake County to do the custodial exchanges, instead of meeting halfway.  Mother argued that the move was voluntary and that, regardless of where the exchange occurs, the children are in the car for the same length of time—therefore, there is no effect on the children. Father argued that a midway exchange location would allow the children to spend more “meaningful” (i.e., not in the car) time with Father during their limited weekend visits because they would get to New Hanover County sooner at the beginning of the weekend and could stay later at the end of the weekend.  The trial court dismissed Father’s motion at the close of his evidence—finding that the move was voluntary and that the car ride has no effect on the children.  Father appealed.

Ruling:  The COA’s ruling was a technical one.  The COA noted the difference between allegations and proof:  allegations are what a party intends to prove at trial.  The COA found that Father’s motion alleged a substantial change in circumstances—the move to New Hanover County and, as a result, less “meaningful” time with the children because the Father has to drive all the way to/from Wake County to pick-up/drop-off the children.  However, the trial court based its dismissal of Father’s motion on a rule dealing with a party’s failure to prove his allegations at trial…but, in its written order, the trial court said that Father had failed to allege a substantial change in circumstances.

Result:  COA vacated order of dismissal and remanded to trial court for entry of new order.

Moriggia v Castello

This was the appeal of a custody case brought by a non-legal parent against the legal parent.  Plaintiff and Defendant were both women in a romantic relationship; they were never legally married.  Plaintiff already had a child and Defendant decided that she, too, wanted a child.  The parties researched various ways of having another baby (adoption, artificial insemination, etc.). Ultimately, a donor egg and donor sperm was used and the parties prepared for “their” baby.  However, once the baby was born, Defendant decided that she wanted to raise this baby as her own and kept the parental decision making and authority to herself, excluding Plaintiff from much of it.  The parties separated when the child was approximately 18 months old.  Thereafter, Plaintiff sued for custody.  The trial court found that Plaintiff did not have standing (as a non-parent) to seek custody of the child and dismissed Plaintiff’s custody claim.  This had the effect of vesting sole and exclusive custody of the child in Defendant.  Plaintiff appealed.