Record on Appeal
Cases Appealed

Moriggia v. Castelo, COA16-444 (2017)

 

The parties were same sex romantic partners (prior to same sex marriage being legalized in North Carolina).  They explored multiple options for having a child together (including adoption, artificial insemination of the birth parent, and implanting one partner’s fertilized eggs into the birth parent).  None of those work, and birth parent ultimately used a donor sperm and egg.

 

Prior to the child’s birth, both parties took a lot of actions to act as “co-parents”, including:  both called themselves mom; each party’s family held a baby shower; both prepared the nursery; both explored the various options for conception; split the cost of the conception and jointly signed forms with the conception agency; and were listed as co-parents at the hospital for the delivery.

 

However, immediately after the birth, the birth parent changed her intention; excluded the other parent so she could bond with the child; was primarily responsible for medical appointments and expenses related to the child; and, non-birth parent was not held out as the child’s mom. The parties separated approximately 20 months after the child was born and non-birth mother sued for joint custody. 

 

A person who is not the biological parent has the ability to seek custody of a child if there is a relationship in the nature of a parent and child relationship and must show that the biological parent acted in a manner inconsistent with his/her constitutionally protected status as parent.  (Those actions are not required to be “bad acts” that would endanger the child.)

 

Even though the birth parent changed her intentions, she had participated in creating a family unit that included the other parent. The pre-birth actions of the parities were a relevant consideration in determining the birth parent’s intent to form a family unit; however, the pre-birth actions alone are not determinative.  Once the birth parent created that family unit, she cannot unilaterally revoke it.

 

[Note:  Had the parties been married, there would likely have been a different analysis because a child born to a married person is presumed to be the child of that person’s spouse. 

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The opinion can be found here:  https://appellate.nccourts.org/opinions/?c=2&pdf=34873

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Perales v. King, 2021-NCCOA-634

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The parties divorced and settled their domestic claims in Florida.  Part of their settlement (which was ultimately adopted as an order of the Florida court) dealt with issues regarding child custody and child support for their minor child.  The parties’ agreement was for 50/50 custody of their child, and Mom was ordered to pay approximately $265/month in child support—however, the parties never really followed the custody schedule, and Mom never paid any child support to Dad.  The parties got back together a few times (on and off) after their divorce was finalized, and mom alleged that they had oral agreements to modify their child support agreement.  Both parties subsequently moved to North Carolina.

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In North Carolina, Mom sought to modify the Florida child support order by registering it here for modification.  Dad sought to enforce the Florida child support order by registering it in North Carolina for enforcement.

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Because Mom did not go through all the steps necessary to register properly the Florida child support order (pursuant to the Uniform Interstate Family Support Act), the court was without jurisdiction to modify the Florida order.  As such, the Court of Appeals affirmed the trial court’s vacating (dismissing) of Mom’s purported registration for modification.  However, because the trial court then proceed to modify the child support order nonetheless—the Court of Appeals reversed that child support modification because the trial court did not have jurisdiction to modify support after vacating Mom’s petition.

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Because the child support order between the parties was a Florida court order, the North Carolina Courts had to look to Florida law to determine whether an oral agreement between the parties was sufficient to modify Florida child support order.  However, the trial court was not able to find sufficient evidence of an agreement between the parties and the past due, unpaid child support payments had vested and were due to Dad.  [NOTE that the North Carolina Courts were applying Florida law.  The result would likely have been different had the child support order been a North Carolina child support order.]

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Ultimately, the Court of Appeals send the case back to the trial for a calculation of Mom’s arrears.

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The opinion can be found here:  https://appellate.nccourts.org/opinions/?c=2&pdf=40607
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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.
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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.
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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.
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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.