Sulier v. Veneskey

IN THE COURT OF APPEALS OF NORTH CAROLINA

2022-NCCOA-658

No. COA21-506, 21-523

Filed 4 October 2022

Davie County, No. 20CVD256

MICHAEL KEITH SULIER, Plaintiff,

v.

TINA BASTIAN VENESKEY, Defendant.

Appeal by defendant from orders entered 23 February 2021 and 3 May 2021

by Judge Mary F. Covington in District Court, Davie County. Heard in the Court of

Appeals 22 March 2022.

Michael Keith Sulier, pro-se, plaintiff-appellee.

Homesley & Wingo Law Group PLLC, by Andrew J. Wingo and Victoria L.

Stout, for defendant-appellant.

STROUD, Chief Judge.

¶1 Defendant-maternal Grandmother appeals the trial court’s orders determining

North Carolina has jurisdiction over the custody of Plaintiff-Father’s minor child and

awarding him full custody. Because we conclude the trial court had subject-matter

jurisdiction under the UCCJEA and its determination Plaintiff-Father is a fit parent

who has not abdicated his constitutional rights to the minor child was supported by

its findings and the evidence, we affirm.

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I. Background

¶2 This case involves a custody dispute between Plaintiff Michael Keith Sulier

(“Father”), and Defendant Tina Bastian Veneskey, maternal grandmother

(“Grandmother”) of Andrea,1 who was born in February 2013.2 Father and Andrea’s

late mother (“Mother”) were never married but were living together when Andrea

was born. Father and Mother separated following Andrea’s birth, after which the

record reflects Father and Mother had a “tumultuous relationship” during which they

“broke up a few times and got back together.” During this period of about two years,

Father cared for the child and “did engage in parenting activities such as feeding,

changing and taking care of the child while the mother was at work.” Mother and

Father then permanently separated in 2014; Mother moved away, took Andrea with

her, got married, and changed her last name. Father did not thereafter have contact

with Andrea. The trial court found from Father’s and his mother’s testimony that

Father’s lack of contact with Andrea after the separation was a result of having been

“led to believe by [Mother] and [Grandmother] that they could no longer have

communication with the minor child,” in part due to a no-contact order, “consistent

with the years between 2014-2020.” The trial court found after the no-contact order

1We refer to the minor child by a pseudonym.

2The trial court adjudicated Father as the “biological parent of the minor child” in its 23

February 2021 order. Grandmother has not challenged this ruling on appeal.

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was lifted in 2016, Father and the paternal grandmother “attempted to locate the

minor child through family inquiries and social media,” but Mother “had a different

last name at that point, and they did not know how to find her.” According to

Grandmother, Mother moved at least eight times with the child during the five years

after Mother and Father separated, throughout North Carolina, Michigan, and

Alaska, never staying in one location longer than a year until moving into Mother’s

final home in North Carolina. Grandmother’s pleadings in this action revealed to

Father for the first time Andrea’s previous whereabouts including her return to North

Carolina by August of 2017 and most recently living since October 2018 in a home

with Mother, Mother’s new husband (“Stepfather”), and another child born to Mother

and Stepfather, the minor child’s half-sibling, in Mocksville, North Carolina.

¶3 Mother passed away on 10 May 2020. At this time, Grandmother lived in

Michigan. After Mother’s death, on or about 18 May 2020, Grandmother traveled to

North Carolina and removed Andrea from North Carolina, bringing her to Michigan

to stay with Grandmother and her husband. Grandmother did so without notifying

Father and without his consent and has kept Andrea in Michigan since. At the time

of Mother’s death and at the time this action was filed, Father was residing in Myrtle

Beach, South Carolina. Father also has a son with his girlfriend who he has lived

with “as a family unit” since his son’s birth, and in his briefing on appeal, Father

states he “takes care of his [son’s] needs [and] he wishes to do the same for his

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biological daughter . . . .” Father did not learn of Mother’s passing until discovering

this through a Facebook posting, at which point he “immediately returned to North

Carolina to pick up his daughter.” Father contacted the police, family members, and

neighbors, but was never informed Grandmother took the child to Michigan.

¶4 Grandmother initiated a guardianship proceeding in the Delta County Probate

Court in Michigan soon after arriving there with Andrea, on 29 May 2020,3 and on 30

June 2020 the Michigan court entered an emergency temporary guardianship order.

Father then filed his verified Complaint for Child Custody two weeks later, on 15

July 2020, in Davie County District Court. On 30 July 2020, Grandmother filed an

action for permanent custody in the Michigan State Court. The Delta Probate Court

in Michigan granted temporary guardianship to Grandmother and a telephone

conference was then held between the Honorable Mary Covington and the Honorable

3 Grandmother did not include in the Record on Appeal or in her brief to this Court any

indication as to the date she filed the guardianship proceeding in Michigan after arriving

there with the child on 18 May 2020. We take judicial notice the Michigan Court of Appeals

affirmed the Delta County trial court’s order declining to exercise child-custody jurisdiction

under the UCCJEA on 26 August 2021. See Veneskey v. Sulier, No. 355471, 2021 Mich. App.

LEXIS 5147 at *1–2, 2021 WL 3821012 at *1 (Mich. Ct. App. Aug. 26, 2021), review denied,

967 N.W.2d 71 (Mich. 2021). The Michigan appeal included only the complaint for custody

Grandmother later filed in circuit court. Id., 2021 Mich. App. LEXIS 5147 at *2–3, *14–15,

2021 WL 3821012 at *1, *6. According to the Michigan Court of Appeals’s opinion, “[Andrea]

was removed from North Carolina on May 18, 2020. [Grandmother] filed the[] petition for

guardianship on May 29, 2020. [Grandmother] filed the[] circuit court complaint on July 31,

2020.” Id., 2021 Mich. App. LEXIS 5147 at *8, 2021 WL 3821012 at *4. We additionally note

the trial court’s order here indicated Grandmother filed the permanent-custody action in

Michigan on 30 July 2020 instead of 31 July 2020.

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Perry Lund of the Circuit Court for the County of Delta, Michigan (“UCCJEA

conference”). Following that conference, on 29 October 2020, the Michigan Court

“entered a summary disposition order under MCR 2.116(C)(4), finding that Michigan

is not the home state of the minor child and is an inconvenient forum” and dismissing

Grandmother’s Michigan custody action.

¶5 On 30 September 2020, Grandmother filed a motion to dismiss Father’s

custody complaint and a Motion for UCCJEA Conference and Answer pursuant to

Chapter 50A of the North Carolina General Statutes (“UCCJEA”). Father filed a

verified Reply and Response to Motion to Dismiss, noting the previous UCCJEA

conference held by Judge Covington and Judge Lund. The next day, on 19 November

2020, Father filed a verified Motion to Allow Supplemental Pleading and verified

Supplemental Pleading and Motion in the Cause for an order awarding him

immediate and temporary custody based upon the Michigan Court’s Order declaring

it was not Andrea’s home state. On 27 January 2021, Grandmother filed her verified

Answer and Counterclaims in North Carolina for “permanent primary custody” of

Andrea. The matters were noticed for hearing on 23 February 2021 and came on

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that day before the Honorable Mary Covington in Davie County District Court.4

Judge Lund, in Michigan, also presided virtually at the 23 February 2021 hearing.

¶6 By Order on Jurisdiction entered 23 February 2021, Judge Covington

concluded North Carolina had subject-matter jurisdiction over Andrea’s custody

because North Carolina was her “home state” as defined by the UCCJEA; and, as an

alternative basis for jurisdiction, a parent or person acting as a parent had significant

contacts with North Carolina and North Carolina was a convenient forum for the

custody proceeding. The trial court found as fact Grandmother and her husband

owned real property located in Davie County, where Grandmother previously resided,

and Andrea and Mother were residing in North Carolina continuously for three years

prior to Mother’s passing. The trial court also found for purposes of the UCCJEA

Stepfather “was acting as a parent to [the child] at the time of [Mother’s] death . . .”

and was living in the North Carolina home with Andrea and her half-sibling. Father

filed a verified Motion to Dismiss Grandmother’s Second Answer and Counterclaims

the same day the trial court entered its Order on Jurisdiction.5

4 It appears from the 23 February 2021 hearing transcript there was some question among

the attorneys for the Parties regarding the scope of what was noticed for hearing that day,

but Grandmother has not raised any argument on appeal regarding the notice of hearing.

5 On 24 March 2021, Grandmother filed written Notice of Appeal from the trial court’s 23

February 2021 Order on Jurisdiction.

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¶7 By Temporary Custody Order entered 3 May 2021,6 Judge Covington

reaffirmed North Carolina’s subject-matter jurisdiction over Andrea’s custody and

concluded Father did not abdicate his constitutionally protected rights as a parent,

was fit and proper to have care, custody, and control, and was therefore entitled to

full custody of the child. The trial court dismissed Grandmother’s claim for custody

and ordered Andrea be immediately returned to Father. On 5 May 2021,

Grandmother filed written notice of appeal from the trial court’s custody order.

II. Discussion

¶8 Grandmother makes many arguments on appeal challenging the trial court’s

award of custody to Father and dismissal of her claim for custody. She argues the

conference Judges Covington and Lund held prior to the court’s Order on Jurisdiction

violated the UCCJEA; the trial court erred in concluding North Carolina was

Andrea’s home state, there also existed significant-connection jurisdiction, and North

Carolina was a convenient forum; and the trial court erred in awarding custody to

Father because the evidence she presented established as a matter of law that Father

abdicated his constitutional rights as a parent. Grandmother also takes exception to

6 It is not clear why the order is entitled “Temporary Custody Order,” but the title is not

controlling. The order is in substance a final and appealable order granting Father full

custody of Andrea and dismissing Grandmother’s claim for custody.

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the trial court’s decision not to admit certain evidence from the child’s Michigan

therapist.

A. Standard of Review

¶9 We review de novo a trial court’s conclusion it has subject-matter jurisdiction

over a custody dispute pursuant to the UCCJEA. In re J.H., 244 N.C. App. 255, 260,

780 S.E.2d 228, 233 (2015); see also In re M.R.J., 378 N.C. 648, 2021-NCSC-112, ¶ 19

(“[S]ubject-matter jurisdiction is a question of law . . . .” (quotations and citation

omitted)).

¶ 10 In custody determinations, “the trial court’s findings of fact are conclusive on

appeal if there is evidence to support them, even though the evidence might sustain

findings to the contrary.” Adams v. Tessener, 354 N.C. 57, 63, 550 S.E.2d 499, 503

(2001) (quotations and citations omitted). However, “a trial court’s determination

that a parent’s conduct is inconsistent with his or her constitutionally protected

status must be supported by clear and convincing evidence.” Id.; In re I.K., 377 N.C.

417, 2021-NCSC-60, ¶ 20 (“The trial court’s legal conclusion that a parent acted

inconsistently with his constitutionally protected status as a parent is reviewed de

novo to determine whether the findings of fact cumulatively support the conclusion

and whether the conclusion is supported by clear and convincing evidence.”). “The

trial court’s findings of fact are conclusive on appeal if unchallenged, or if supported

by competent evidence in the record.” In re I.K., ¶ 20 (citations omitted).

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B. Procedure for UCCJEA Conference

¶ 11 We first address Grandmother’s arguments the trial court violated the

UCCJEA in the procedure it followed in communicating with the Michigan Court.

Grandmother argues she suffered “significant harm” as a result of the trial court’s

application of N.C. Gen. Stat. § 50A-110 during its initial phone conference with

Judge Lund.7 That section provides, in part:

(a) A court of this State may communicate with a court in

another state concerning a proceeding arising under [the

UCCJEA].

(b) The court may allow the parties to participate in the

communication. If the parties are not able to participate in

the communication, they must be given the opportunity to

present facts and legal arguments before a decision on

jurisdiction is made.

....

(d) . . . [A] record must be made of a communication under

this section. The parties must be informed promptly of the

communication and granted access to the record.

N.C. Gen. Stat. § 50A-110 (2021).

¶ 12 Grandmother here takes issue with the telephone call Judge Lund and Judge

Covington had during the Michigan proceeding, prior to the North Carolina hearing

7This telephone conference originated in the Michigan proceeding; Michigan has the same

provision in its UCCJEA statute. Compare Mich. Comp. Laws § 722.1110 (2020) with N.C.

Gen. Stat. § 50A-110 (2021).

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regarding jurisdiction. After the telephone conference between Judge Lund and

Judge Covington, the Michigan Court dismissed Grandmother’s Michigan custody

action on the ground Michigan was not Andrea’s home state or a convenient forum.

That call originated with Judge Lund in Michigan based upon the custody proceeding

Grandmother filed in Michigan. Grandmother acknowledges there was also a full

hearing in the North Carolina action on 23 February 2021 “where the Trial Court of

North Carolina, the Circuit Court of Michigan, and the attorneys for both parties

from both states were present,” and at that hearing both Judges “heard from all

attorneys regarding how N.C. Gen. Stat. § 50A-110 was applied . . . and discussed the

procedural history of both the Michigan guardianship action and the North Carolina

custody action.” Grandmother complains the result of the North Carolina hearing

“did not change the outcome” of the Judges’ earlier phone call in the Michigan

proceeding, but that does not change the fact Grandmother had the full UCCJEA

hearing in this North Carolina action. The Judges from both States attended a

hearing in North Carolina and heard and discussed at length counsels’ jurisdictional

arguments, and then the trial court entered an Order on Jurisdiction, and a second

Temporary Custody Order again finding facts affirming its jurisdiction. Any issue

Grandmother takes with the procedure the Michigan Court followed in

Grandmother’s case there would be for the Michigan Courts to decide, and in fact, the

Michigan Court of Appeals affirmed the dismissal of Grandmother’s Michigan child-

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custody proceeding, concluding North Carolina was the child’s home state and

Michigan was an inconvenient forum for her custody determination. See Veneskey,

supra, 2021 Mich. App. LEXIS 5147 at *8-10, 2021 WL 3821012 at *4 (“[A]n

individual who removes a minor child from the home state should not obtain a benefit

between the removal date and date of a filing of a custody petition in Michigan by

claiming that this period destroyed the prior occupancy period and relationship to the

home state.”).

C. Jurisdiction Under UCCJEA

¶ 13 Grandmother contends the trial court erred in its ultimate determination

North Carolina has subject-matter jurisdiction as Andrea’s home state, or in the

alternative, significant-connection jurisdiction. Grandmother argues both

conclusions were erroneous based on the evidence, but she does not challenge any of

the trial court’s findings of fact, so we are bound by these findings. In re K.N., 378

N.C. 450, 2021-NCSC-98, ¶ 17 (“Unchallenged findings are deemed to be supported

by the evidence and are binding on appeal.”).

¶ 14 The trial court made the following findings in support of its determination in

its 23 February 2021 Order on Jurisdiction:

2. The Defendants [(Grandmother and her husband)]

are the maternal grandparents of the minor child and

reside in Michigan, although they own real property

located in Davie County, North Carolina, where the minor

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child was living at the time of biological [M]other’s death.

3. Within moments of the biological [M]other’s death,

[Grandmother] removed the minor child from the

jurisdiction of her home state. The minor child has resided

in North Carolina continuously [from] 2017-2020 when her

[M]other passed away.

4. There is credible evidence that the minor child lived

in multiple places with . . . [Mother]. And although the

minor child was born in the State of Michigan, she resided

in North Carolina continuously for approximately three

years prior to her [M]other’s passing in . . . North Carolina.

5. [Grandmother] has previously resided in Davie

County, North Carolina.

6. [Mother] was residing in North Carolina six months

prior to her death in May 2020. She married and had a

child with [Stepfather]. The minor child has a half-sibling

that currently lives in North Carolina.

7. [Stepfather] . . . was acting as a parent to . . .

[Andrea] at the time of the [M]other’s death and when he

turned the minor child over to [Grandmother]. He

currently still resides in North Carolina.

....

9. Although the child was removed from the state of

North Carolina, she and at least one parent or persons

acting as a parent, have significant contact with the state

of North Carolina.

10. The State of Michigan did assume emergency

temporary jurisdiction for the purposes of establishing a

temporary guardianship when the child was taken to

North Carolina [sic] after the [M]other’s death, by

[Grandmother]. [Father] did not give consent to the child

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being removed from North Carolina.

11. On October 29, 2020, in the Circuit Court for the

County of Delta, in the State of Michigan, the Honorable

Perry Lund entered a summary disposition order . . .

finding that Michigan is not the home state of [Andrea] and

is an inconvenient forum. . . .

12. As of the date of this hearing, Michigan’s only

jurisdiction pertained to the temporary guardianship

ordered by the Delta County Probate Court in Case No. 20-

GM-22549.

....

14. [Father] filed his action for custody in . . . North

Carolina, the child’s home state, on July 15, 2020.

[Grandmother] filed her custody action in Michigan on July

30, 2020.

....

17. The Court has determined that North Carolina has

jurisdiction over the subject matter in the case and

personal jurisdiction over the parties because of

[Grandmother] and the minor child’s significant contacts

within the state of North Carolina.

18. Furthermore, the court finds that North Carolina is

the more convenient forum for the minor child and for

[Father] and at least one contestant has significant

connections within the state of North Carolina.

....

(Parentheticals added). The trial court also made the following relevant findings in

its 3 May 2021 custody order:

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3. At the time of [M]other’s death, the minor child was

residing in Mocksville, NC, in a home owned by

[Grandmother], with her [M]other and her new husband of

less than a year, [Stepfather] . . . .

....

6. Neither party in this action currently reside in the

State of North Carolina, however, after . . . conducting a

jurisdictional hearing with the juvenile Judge in the State

of Michigan, it was determined that North Carolina is the

home state. That jurisdictional ruling is currently on

appeal in Michigan.[8]

7. The Court finds that North Carolina is the home

state of the minor child at the time of the filing of this

action. [Andrea] was living at least six months prior to the

death of her [M]other and prior to the filing of this action

by [Father].

....

9. [Father] learned of [Mother’s death] on the social

media page of a family member of the decedent and he

immediately returned to North Carolina to pick up

[Andrea] . . . .

....

11. The Court finds that within a few days of [Mother’s

death], [Grandmother] came to North Carolina from

Michigan and removed the child from the jurisdiction of

North Carolina and took her back to Michigan. . . . .

8As noted above, the Michigan Court of Appeals affirmed the Delta County trial court’s order

on 26 August 2021. See Veneskey, supra, 2021 Mich. App. LEXIS 5147 at *1–2, 2021 WL

3821012 at *1.

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12. [Grandmother] and [Stepfather] had an attorney

draw up a consent agreement to allow [Grandmother] to

take the child back to Michigan without [Father’s] consent.

....

13. . . . [Father] had family in the area where [Andrea]

was residing [(in North Carolina)] and [his mother,] the

paternal grandmother, and [Grandmother] had previous

communications by phone to discuss the minor child and

exchanged photos . . . .

....

20. According to the verified pleadings of

[Grandmother], [Mother] resided at 6 different addresses

although she moved 8 times in 5 years. . . . .

21. After the no-contact order . . . and the charges were

dismissed, [Father and his mother] attempted to locate

[Andrea] . . . . [Mother] did not appear in court to testify

because she had left the state with [Andrea] and never

informed [Father] where she was going.

22. [Father] . . . . sent [gifts and cards for Andrea] to

[Grandmother’s] residence in Michigan as [Mother] had a

habit of returning to her mother’s residence when she

needed help from her. . . . .

....

26. . . . . [Grandmother’s] testimony that she moved from

her home into a different home right after her daughter’s

death because the memories of her were too painful, is not

credible. It once again appears to the court that it was

another way to hide or secret the child from [Father] now

that she was appointed guardian in an emergency hearing

in Michigan. In fact, it would seem to be more comforting

to the grieving child to be around her [M]other’s memories

and personal belongings, rather than be moved into a place

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with no memories.

....

(Parentheticals and footnote added).

¶ 15 Grandmother has not challenged any of these findings as unsupported by the

evidence, so these findings are binding upon this Court. In re K.N., ¶ 17; In re I.K., ¶

20; see also In re M.R.J., ¶ 38 (“The trial court is not required to make specific findings

of fact demonstrating its jurisdiction under the UCCJEA, but the record must reflect

that the jurisdictional prerequisites in the Act were satisfied when the court exercised

jurisdiction.” (quotations and citation omitted)). We also note that some of the

findings, particularly regarding North Carolina’s status as Andrea’s home state, are

actually conclusions of law, so we will review those “findings” de novo. See Walsh v.

Jones, 263 N.C. App. 582, 589–90, 824 S.E.2d 129, 134 (2019) (“If the trial court labels

as a finding of fact what is in substance a conclusion of law, we review that ‘finding’

de novo.” (quotations and citation omitted)); In re Everette, 133 N.C. App. 84, 85, 514

S.E.2d 523, 525 (1999) (“[A]ny determination requiring the exercise of judgment, or

the application of legal principles, is more properly classified a conclusion of law.”

(quotations and citation omitted)).

¶ 16 “Whenever one of our district courts holds a custody proceeding in which one

contestant or the children appear to reside in another state, the court must initially

determine whether it has jurisdiction over the action.” In re J.H., 244 N.C. App. at

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262, 780 S.E.2d at 234–35 (quotations and citation omitted). Subject-matter

jurisdiction over child custody actions is governed by N.C. Gen. Stat. § 50A-101 et

seq., North Carolina’s codification of the UCCJEA. As this Court has previously

noted, “Michigan and North Carolina have codified the UCCJEA in virtually identical

terms,” which, in Article 2, Part 2, establishes several “modes” of jurisdiction. See In

re A.L.L., 254 N.C. App. 252, 262, 802 S.E.2d 598, 605–06 (2017) (“The UCCJEA

recognizes four modes of subject-matter jurisdiction: (1) initial child-custody

jurisdiction, N.C. Gen. Stat. § 50A-201; (2) exclusive, continuing jurisdiction, N.C.

Gen. Stat. § 50A-202; (3) jurisdiction to modify determination, N.C. Gen. Stat. § 50A-

203; and (4) temporary emergency jurisdiction, N.C. Gen. Stat. § 50A-204.”).

¶ 17 The first “mode,” North Carolina General Statute § 50A-201, is at issue here.

Id. That section provides:

(a) . . . [A] court of this State has jurisdiction to make

an initial child-custody determination only if:

(1) This State is the home state of the child on the

date of the commencement of the proceeding, or

was the home state of the child within six months

before the commencement of the proceeding, and

the child is absent from this State but a parent or

person acting as a parent continues to live in this

State;

(2) A court of another state does not have

jurisdiction under subdivision (1), or a court of

the home state of the child has declined to

exercise jurisdiction on the ground that this

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State is the more appropriate forum under G.S.

50A-207 or G.S. 50A-208, and:

a. The child and the child’s parents, or the

child and at least one parent or a person

acting as a parent, have a significant

connection with this State other than

mere physical presence; and

b. Substantial evidence is available in this

State concerning the child’s care,

protection, training, and personal

relationships;

(3) All courts having jurisdiction under subdivision

(1) or (2) have declined to exercise jurisdiction on

the ground that a court of this State is the more

appropriate forum to determine the custody of

the child under G.S. 50A-207 or G.S. 50A-208; or

(4) No court of any other state would have

jurisdiction under the criteria specified in

subdivision (1), (2), or (3).

(b) Subsection (a) is the exclusive jurisdictional basis

for making a child-custody determination by a court of this

State.

(c) Physical presence of, or personal jurisdiction over, a

party or a child is not necessary or sufficient to make a

child-custody determination.

N.C. Gen. Stat. § 50A-201 (2021).

¶ 18 This section thus establishes jurisdiction over initial child custody

determinations in various scenarios. First, the court must identify the child’s “home

state” as defined in North Carolina General Statute § 50A-102. Next, the court must

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determine whether North Carolina has jurisdiction under any subsection of § 50A-

201. If North Carolina is the “home state” and “a parent or person acting as a parent

continues to live in this State,” jurisdiction falls under subsection (a)(1). Here, the

trial court, and the Michigan Court, determined North Carolina is Andrea’s home

state. See Veneskey, supra, 2021 Mich. App. LEXIS 5147 at *9–10, 2021 WL 3821012

at *4 (explaining Michigan is not the home state before stating “even if North

Carolina does not qualify as the home state” implying North Carolina is the home

state). The trial court also found that a person acting as a parent, Stepfather,

continues to live in this state.

1. Home State

¶ 19 We begin the “home state” analysis with the date of commencement of the

initial child custody proceeding. In both North Carolina and Michigan,

“‘[c]ommencement’ means the filing of the first pleading in a proceeding.” N.C. Gen.

Stat. § 50A-102(5) (2021); Mich. Comp. Laws § 722.1102(e) (2021). And in both states,

a “child custody proceeding” includes a proceeding for guardianship. N.C. Gen. Stat.

§ 50A-102(4); Mich. Comp. Laws § 722.1102(d). As noted by the Michigan Court of

Appeals,

“Child-custody proceeding” means a proceeding in which

legal custody, physical custody, or parenting time with

respect to a child is an issue. Child-custody proceeding

includes a proceeding for . . . guardianship, paternity,

termination of parental rights, and protection from

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domestic violence, in which the issue may appear.

Veneskey, supra, 2021 Mich. App. LEXIS 5147 at *9, 2021 WL 3821012 at *4

(emphasis in original) (quoting Mich. Comp. Laws § 722.1102(d)). The Michigan

Court of Appeals continued:

The May 29, 2020 guardianship petition was filed only

several days after [Andrea] left North Carolina. Regardless

of the time period during which [Andrea] was removed

from North Carolina and [Grandmother’s] filings in

Michigan to secure guardianship and custody, we conclude

that it did not render Michigan as [Andrea’s] home state

for purposes of plaintiffs’ and defendant’s claims for

custody. Indeed, in the six-month time period preceding

[Andrea’s] move to Michigan and the commencement of

legal proceedings here, [Andrea] resided in North Carolina

with her family.

Id., 2021 Mich. App. LEXIS 5147 at *9-10, 2021 WL 3821012 at *4.

¶ 20 Michigan’s analysis is consistent with North Carolina law. Moreover, the

definition of “home state” in the UCCJEA notes that a “period of temporary absence”

of a parent or child is included in the statutory six-month period immediately before

commencement of a child custody proceeding. See N.C. Gen. Stat. § 50A-102(7) (“A

period of temporary absence of any of the mentioned persons is part of the period.”).

¶ 21 As noted by the Michigan Court of Appeals, “in the six-month time period

preceding [Andrea’s] move to Michigan and the commencement of legal proceedings

here, [Andrea] resided in North Carolina with her family.” Veneskey, supra, 2021

Mich. App. LEXIS 5147 at *9-10; 2021 WL 3821012 at *4. After her Mother’s death,

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Andrea remained with “her family,” specifically her Stepfather, who was “a person

acting as a parent,” and her sibling, until Grandmother took Andrea to Michigan on

18 May 2020. On 29 May 2020, Grandmother filed the temporary guardianship

proceeding, which was the “commencement of a child custody proceeding,” as

correctly noted by the Michigan Court of Appeals. Veneskey, supra, 2021 Mich. App.

LEXIS 5147 at *8, 2021 WL 3821012 at *4. The trial court found Grandmother took

Andrea to Michigan “to hide or secret the child from [Father] . . . .”

¶ 22 Under the UCCJEA, North Carolina was Andrea’s home state on the date of

the commencement of the proceeding in Michigan, which is the date of

commencement of the initial child-custody proceeding. Andrea had lived in North

Carolina continuously for more than six months prior to 18 May 2020, when

Grandmother took her to Michigan. Thus, Andrea had been in Michigan for only 11

days when a proceeding was filed. We conclude this period of 11 days in Michigan

with Grandmother was a temporary absence from North Carolina for purposes of the

statutory definition of “home state.”

While the issue of whether an absence from a state

amounted to a temporary absence has previously come

before this Court, we have decided this issue on a case-by-

case basis. Some courts in sister states have adopted

certain tests for determining whether an absence from a

state was a temporary absence. These tests include (1)

looking at the duration of absence, (2) examining whether

the parties intended the absence to be permanent or

temporary, and (3) adopting a totality of the circumstances

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approach to determine whether the absence was merely a

temporary absence. We deem the third option to be the

most appropriate choice for several reasons. First, it

comports with the approach taken by North Carolina

courts in determining the issue of whether an absence was

temporary on the basis of the facts presented in each case.

Second, it incorporates considerations, such as the parties’

intent and the length of the absence, that courts of sister

states have found important in making this determination.

Third, it provides greater flexibility to the court making the

determination by allowing for consideration of additional

circumstances that may be presented in the multiplicity of

factual settings in which child custody jurisdictional issues

may arise.

Chick v. Chick, 164 N.C. App. 444, 449–50, 596 S.E.2d 303, 308 (2004) (citations

omitted).

¶ 23 We therefore consider the “totality of the circumstances to determine whether

the absence was merely a temporary absence.” Id. As part of this analysis, we

consider the parties’ intent, length of the absence, and the particular factual

circumstances of this case. Id. The length of absence was extremely short, only 11

days, and the factual circumstances of this case are tragic, as this custody dispute

arose upon the death of Andrea’s mother and has continued, in two states, because

Grandmother sought to “hide or secret the child from [Father]” and establish custody

herself in Michigan. Under the totality of the circumstances, her presence in

Michigan was a “temporary absence” from North Carolina and North Carolina is

Andrea’s home state under the UCCJEA. Andrea lived here with her Mother,

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Stepfather, and sibling more than six months prior to 18 May 2020. She was moved

to Michigan only due to her Mother’s death. No doubt Grandmother intended this

move to be permanent, not temporary, but Grandmother is not Andrea’s parent and

did not have custody of Andrea. Thus, Andrea’s absence from North Carolina was

temporary, only several days, before the commencement of the proceeding. She had

resided in North Carolina with Mother and Stepfather for more than six months

before the commencement of the proceeding in Michigan. The trial court did not err

by concluding North Carolina is Andrea’s “home state.”

2. Presence of Parent or Person Acting as a Parent

¶ 24 Under subsection (a)(1), the next issue is whether “a parent or person acting

as a parent continues to live in this State.” N.C. Gen. Stat. § 50A-201(a)(1).

Grandmother contends Stepfather was not a “person acting as a parent” for purposes

of § 50A-201(a)(1). She argues

even though after [Mother’s] death [Stepfather] was acting

as a parent to the minor child, that status ceased when

[Stepfather] signed the agreement to allow Defendant-

Appellant to take the minor child to Michigan and

Defendant-Appellant did take the minor child to Michigan.

Therefore, at the time Plaintiff-Appellee filed his

complaint, [Stepfather] was not a person acting as a parent

to the minor child because [Stepfather] did not have

physical custody of the minor child for six consecutive

months immediately before the commencement of the

action since Defendant-Appellant had the minor child for

approximately two months and prior to that [Mother] had

custody of the minor child as her parent. In addition,

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[Stepfather] has not been awarded custody nor is he

seeking custody of the minor child as evidenced by his

signing of the agreement that gave away any parental

rights he possessed at the time to Defendant-Appellant.

(04/29/2021 T pp 48, 79).

¶ 25 The trial court found that Andrea’s Stepfather was a person “acting as a

parent” who continues to live in North Carolina, but this finding is actually a

conclusion of law and we review it accordingly. Walsh, 263 N.C. App. at 589–90, 824

S.E.2d at 134; In re Everette, 133 N.C. App. at 85, 514 S.E.2d at 525. Thus, we must

consider whether Stepfather was a “person acting as a parent” under the UCCJEA.

¶ 26 North Carolina General Statute § 50A-102(13) defines a “person acting as a

parent” as “a person, other than a parent, who:

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.

N.C. Gen. Stat. § 50A-102(13) (2021).

¶ 27 The Uniform Law Comment for UCCJEA § 50A-102 notes:

The term “person acting as a parent” has been slightly

redefined. It has been broadened from the definition in the

UCCJA to include a person who has acted as a parent for a

significant period of time prior to the filing of the custody

proceeding as well as a person who currently has physical

custody of the child. In addition, a person acting as a parent

must either have legal custody or claim a right to legal

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custody under the law of this State. The reference to the law

of this State means that a court determines the issue of

whether someone is a “person acting as a parent” under its

own law.

N.C. Gen. Stat. Ann. § 50A-102 (West 2021) (emphasis added).

¶ 28 We have been unable to find any North Carolina case addressing whether a

stepparent who lives with a minor child and her other parent for more than six

months prior to the commencement of the child custody proceeding may be considered

as a “person acting as a parent” under North Carolina General Statute § 50A-102,

particularly where that stepparent is not claiming a right to legal custody. Before

the trial court, Grandmother argued Stepfather could not be a “person acting as a

parent” under the UCCJEA because he was not claiming any right to legal custody;

instead, he had executed a “consent agreement to allow [Grandmother] to take the

child back to Michigan without [Father’s] consent.”9

¶ 29 Since the UCCJEA is a uniform act, in the absence of any North Carolina cases

addressing this issue in detail, we find the analysis by other courts instructive. The

North Dakota Supreme Court has summarized treatment of this issue by many states

in Schirado v. Foote, 785 N.W.2d 235 (N.D. 2010). In Shirado, in a custody dispute

9The terms of this document are not in our record. It is referred to at one point as a “power

of attorney” and the trial court referred to it as a “consent agreement,” but the import of the

document was to grant Grandmother permission to take the child to Michigan and

presumably to allow Grandmother to exercise some sort of parental authority over the child.

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between the child’s parents, the trial court had determined the Fort Berthold Indian

Reservation was the child’s home state because the child had resided there with his

grandparents, as “a person acting as a parent.” 785 N.W.2d at 237–38. The North

Dakota Supreme Court remanded for additional findings of fact but addressed the

analysis of whether the grandparents may be persons “acting as a parent” under the

UCCJEA:

The alternative basis for the district court’s dismissal of

Schirado’s action was that the child lived with Foote’s

parents. If the home state determination was based in

whole or in part on the child living with his grandparents,

the grandparents would need to be persons acting as

parents to the child. Under our version of the UCCJEA, a

“[p]erson acting as a parent” is a nonparent who

“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.”

N.D.C.C. § 14–14.1–01(11). The grandparents cared for the

child from September 2006 to December 2007, arguably

satisfying the first requirement of being “a person acting

as a parent” if the jurisdictional decision was not based on

J.L.F. living with Foote. N.D.C.C. § 14–14.1–01(6).

However, jurisdiction depends on the circumstances that

exist at the time the proceeding is commenced. Id. The

grandparents had not been awarded legal custody by a

court before Schirado commenced this action in North

Dakota court. Therefore, the dispositive issue for

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determining jurisdiction, based on the child living with the

grandparents, is whether the grandparents qualified as

persons acting as parents by claiming a right to legal

custody under the laws of North Dakota. See N.D.C.C. §

14–14.1–01(11)(b). We will proceed to discuss the

applicable law on this issue because its analysis is likely to

arise on remand. In re Voisine, 2010 ND 17, ¶ 13, 777

N.W.2d 908 (citing Dosland v. Netland, 424 N.W.2d 141,

142 (N.D.1988)).

[¶ 17] This Court has not interpreted what it means to

claim a right to legal custody under North Dakota law. A

survey of judicial decisions in other states reveals there is

no consistent interpretation of the requirement. However,

national case law consistently presents three elements

considered in determining if a person claims a right to legal

custody under the laws of a state: 1) formality, 2) timing

and 3) plausibility.

A

[¶ 18] Our sister states require a nonparent’s claim of legal

custody to conform with differing levels of formality under

the UCCJEA. Pennsylvania and Texas require nonparents

seeking “person acting as a parent” status to formally apply

for legal custody from a court before they are deemed to

have claimed a right to legal custody under the UCCJEA.

Wagner v. Wagner, 887 A.2d 282, 287 (Pa.Super.Ct.2005)

(holding parent’s mother needed to seek legal custody of

the child from a court to claim a right to legal custody under

UCCJEA); In re S.J.A., 272 S.W.3d 678, 684

(Tex.App.2008) (holding stepmother needed to seek legal

custody of child from a court to claim a right to legal

custody under UCCJEA). On the other end of the spectrum,

Delaware requires no formal application for legal custody,

instead requiring only that the prospective “person acting

as a parent” have “the right to claim legal custody” to

qualify as a person claiming a right to legal custody of a

child. Adoption House, Inc. v. A.R., 820 A.2d 402, 408–09

(Del.Fam.Ct.2003) (holding adoption agency claimed right

to legal custody of child by having “the right to claim legal

custody”).

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[¶ 19] In Hangsleben v. Oliver, 502 N.W.2d 838, 842–43

(N.D.1993), this Court addressed the term “a person acting

as a parent” under the UCCJEA’s predecessor, the UCCJA.

See N.D.C.C. ch. 14–14 (repealed 1999). In Hangsleben and

under the UCCJA, “[a] ‘person acting as a parent’ is defined

as a ‘person, other than a parent, who has physical custody

of a child and who has either been awarded custody by a

court or claims a right to custody.’ ” 502 N.W.2d at 842. In

Hangsleben we concluded “the common-sense definition of

a ‘person acting as a parent’ ” included grandparents who

“fed, clothed, and cared for” their granddaughter at the

request of the child’s mother and without a court order. Id.

at 843. Other jurisdictions have reached similar results.

See In re A.J.C., 88 P.3d 599, 606–07 (Colo.2004) (finding

adoptive parents to be persons acting as parents under

UCCJA where they had “exercised all parental rights and

responsibilities” since the child’s birth); Reed v. Reed, 62

S.W.3d 708, 713 (Mo.Ct.App.2001) (finding maternal

grandmother was person acting as parent under the plain

meaning of the term in the UCCJA); In re B.N.W., No.

M2004–02710–COA–R3–JV, 2005 WL 3487792, **25–26

(Tenn.Ct.App. Dec.20, 2005) (finding paternal

grandmother providing care for child was person acting as

a parent under UCCJEA); Ruffier v. Ruffier, 190 S.W.3d

884, 890 (Tex.App.2006) (finding maternal grandmother

caring for child in Belarus was a person acting as a parent

under UCCJEA).

[¶ 20] As between the UCCJA and the UCCJEA, the

UCCJEA has changed the pertinent portion of the

definition of a “person acting as a parent” to mean a person

who “[h]as been awarded legal custody by a court or claims

a right to legal custody under the law of this state.”

N.D.C.C. § 14–14.1–01(11)(b). We note the different words

used in the definitions in the UCCJEA and the UCCJA.

However, we have not been asked by the parties to this

appeal to deviate from the level of formality applied in

Hangsleben. Nor do we perceive a clear majority position

among other jurisdictions addressing this point so that we

are willing to change course without the benefit of full

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briefing and argument by parties with a stake in the

outcome of the issue.

[¶ 21] Here, the grandparents did not formally claim a

right to legal custody until they petitioned the tribal court

to grant them temporary custody of the child. But their

extended care and custody of the child appears to satisfy

the “common-sense” definition in Hangsleben that the

grandparents are persons acting as a parent. See also

N.D.C.C. § 14–10–05 (parent may place child in home of

grandparent). Therefore, for purposes of this case, if

jurisdiction is based upon the grandparents, the formality

requirement can be considered satisfied for purposes of

determining whether the Fort Berthold Indian Reservation

is the home state.

B

[¶ 22] The next factor is timing of the nonparent’s claim. A

small number of jurisdictions allow nonparents to assert

their claim to legal custody at any point in the pending

litigation. See, e.g., Patrick v. Williams, 952 So.2d 1131,

1139 n. 9 (Ala.Civ.App.2006) (applying Alabama’s modified

version of UCCJEA and holding no formal claim to legal

custody need be made in cases where grandparents have

physical custody of child at time of proceedings); Adoption

House, Inc., 820 A.2d at 408–09 (waiving timing element

from consideration by allowing nonparents to claim a right

to legal custody under UCCJEA by merely having the right

to do so). Most jurisdictions addressing this issue require a

nonparent’s claim of legal custody, whether formal or

informal, to be asserted prior to or simultaneous with the

initiation of the pending action. See, e.g., In re Sophia G.L.,

229 Ill.2d 143, 321 Ill.Dec. 748, 890 N.E.2d 470, 482 (2008)

(holding maternal grandparents were persons acting as

parents under UCCJEA where grandparents petitioned

Indiana court for custody of children before father initiated

pending proceeding in Illinois); Plemmons v. Stiles, 65

N.C.App. 341, 309 S.E.2d 504, 506 (1983) (holding

grandparents were persons acting as parents under

UCCJA where grandparents initiated pending proceeding

by petitioning for custody of child); Draper v. Roberts, 839

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P.2d 165, 173–74 (Okla.1992) (holding under UCCJA that

“[t]he critical time for testing whether the custodians were

‘acting as parents’ and ‘claim a right to custody’ was the

point in time when the [pending action] was filed”);

O’Rourke v. Vuturo, 49 Va.App. 139, 638 S.E.2d 124, 128

(2006) (holding nonbiological father was a person acting as

a parent under UCCJEA where he requested custody at

outset of pending divorce proceeding); In re A.C., 165

Wash.2d 568, 200 P.3d 689, 692 (2009) (holding foster

parents were persons acting as parents under UCCJEA

where they petitioned for nonparental custody at outset of

pending action).

[¶ 23] Giving priority to a child’s home state is the central

provision of the UCCJEA, and the UCCJEA is intended to

“[a]void jurisdictional competition and conflict with courts

of other States in matters of child custody.” Uniform Child

Custody Jurisdiction and Enforcement Act § 101 cmt.1, 9

U.L.A. 657; Kelly, 2009 ND 20, ¶ 21, 759 N.W.2d 721. It has

long been held that subject matter jurisdiction is

determined at the time a suit is initiated, and to hold

otherwise would undermine one of the UCCJEA’s central

functions by allowing participants to divest a state of

jurisdiction by changing the analysis after proceedings

have begun. In re Mannix, 97 Or.App. 395, 776 P.2d 873,

875 (1989). We therefore conclude that to qualify as a

“person acting as a parent” under the UCCJEA, a

nonparent’s claimed right to legal custody must occur prior

to, or simultaneous with, the initial filing related to the

instant litigation. To hold otherwise would be contrary to

the function of the UCCJEA and contrary to the principles

of “certainty, predictability and uniformity of result.” Daley

v. American States Preferred Ins. Co., 1998 ND 225, ¶ 14 n.

4, 587 N.W.2d 159 (enumerating goals in choice of law

analysis).

Schirado, 785 N.W.2d at 240–43 (alterations in original).

¶ 30 Thus, the North Dakota Supreme Court determined the factors normally

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considered in the analysis of whether a person is “a person acting as a parent” under

the UCCJEA are the 1) formality, 2) timing and 3) plausibility of the person’s claimed

right to legal custody of the child. Id. at 241. The relevant time is immediately prior

to or simultaneously with the commencement of the child custody proceeding. Id. at

243. We hold this analysis is consistent with the “function of the UCCJEA” and

“principles of ‘certainty, predictability and uniformity of result.’” Id. (quoting Daley

v. American States Preferred Ins. Co., 587 N.W.2d 159, 162 n.4 (N.D. 1998)).

¶ 31 Here, these factors make our analysis quite simple. We need not analyze the

formality or plausibility of any claim to custody by Stepfather under North Carolina

law, because he made no such claim. At the time of commencement of the proceeding,

Stepfather was not making any claim to custody. To the contrary, he had executed a

document purporting to give Grandmother permission to take the child to Michigan.

We need not consider whether Stepfather would have had any right to a claim for

custody under North Carolina law because he clearly did not make such a claim but

instead declared his opposite intention. Under the UCCJEA, Stepfather was not a

“person acting as a parent,” and the trial court’s conclusion to this effect was not

supported by its findings of fact.

¶ 32 Thus, North Carolina is Andrea’s “home state,” but no parent or person acting

as a parent remains in North Carolina. Subject matter jurisdiction does not fall under

subsection (a)(1). We must proceed to consider subsection (a)(2).

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3. Significant Connection Jurisdiction

¶ 33 The trial court concluded North Carolina would have significant connection

jurisdiction, but part of this determination was based upon its conclusion that

Stepfather was a “person acting as a parent” and we have already addressed this

issue. There was no “person acting as a parent” in this case, and Father is the only

parent.

¶ 34 North Carolina General Statute § 50A-201(a)(2) provides this State may have

jurisdiction if:

(2) A court of another state does not have jurisdiction

under subdivision (1), or a court of the home state of the

child has declined to exercise jurisdiction on the ground

that this State is the more appropriate forum under G.S.

50A-207 or G.S. 50A-208, and:

a. The child and the child’s parents, or the child and at

least one parent or a person acting as a parent, have a

significant connection with this State other than mere

physical presence; and

b. Substantial evidence is available in this State

concerning the child’s care, protection, training, and

personal relationships;

N.C. Gen. Stat. § 50A-201(a)(2) (emphasis added).

¶ 35 As we have already addressed, Father lives in South Carolina. There is no

parent or “person acting as a parent” who lives in North Carolina or who has

significant connections with North Carolina. Stepfather was not a “person acting as

a parent,” and based upon the trial court’s findings of fact, Grandmother was not a

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“person acting as a parent” either. At the time of the commencement of the

proceeding, she did not have “physical custody of the child” and had not “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.” N.C. Gen. Stat. § 50A-102(13). Based on the trial court’s findings, the

child had “significant connection” to North Carolina, but subsection (2) requires that

both the child and “at least one parent or a person acting as a parent, have a

significant connection with this State other than mere physical presence.” N.C. Gen.

Stat. § 50A-201(a)(2)(a). Here, there is no parent in North Carolina or with

significant connections to North Carolina. Thus, jurisdiction cannot fall under

subsection (a)(2), despite the trial court’s findings regarding “substantial evidence . .

. available in this State concerning the child’s care, protection, training, and personal

relationships.” Id., § 50A-201(a)(2)(b). We must proceed to subsection (a)(3).

4. More Appropriate Forum Jurisdiction

¶ 36 North Carolina General Statute § 50A-201(a)(3) allows jurisdiction where “[a]ll

courts having jurisdiction under subdivision (1) or (2) have declined to exercise

jurisdiction on the ground that a court of this State is the more appropriate forum to

determine the custody of the child under G.S. 50A-207 or G.S. 50A-208.”

¶ 37 Here, Grandmother claimed Michigan should have subject matter jurisdiction,

but Michigan determined it was not the child’s home state and that North Carolina

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is the more appropriate forum to determine custody. See Veneskey, supra, 2021 Mich.

App. LEXIS 5147 at *9–13, 2021 WL 3821012 at *4–6 (Michigan court finding it

would be an inconvenient forum and then determining North Carolina would have

jurisdiction). There is no state other than North Carolina or Michigan which might

have initial child custody jurisdiction under the UCCJEA. Although Father lives in

South Carolina, Andrea has never lived there. But this case does not fall clearly

under subsection (a)(3) because no other state “having jurisdiction under subdivision

(1) or (2) . . . declined to exercise jurisdiction on the ground that a court of this State

[North Carolina] is the more appropriate forum to determine the custody of the child

under G.S. 50A-207 or G.S. 50A-208.” N.C. Gen. Stat. § 50A-201(a)(3) (emphasis

added. Michigan determined it did not have jurisdiction under subdivisions (1) or (2),

although it did determine North Carolina would be the more appropriate forum.

Veneskey, supra, 2021 Mich. App. LEXIS 5147 at *9–13, 2021 WL 3821012 at *4–6.

We must proceed to subdivision (a)(4).

5. Jurisdiction by Necessity

¶ 38 North Carolina General Statute § 50A-201(a)(4) provides that a court of this

State has jurisdiction to make an initial child-custody determination only if “[n]o

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

subdivision (1), (2), or (3).” N.C. Gen. Stat. § 50A-201(a)(4).

¶ 39 Due to the unusual circumstances of this case, North Carolina has jurisdiction

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by necessity under § 50A-201(a)(4). As we have already discussed, no other state

would have jurisdiction to make an initial child custody determination under

subdivisions (1), (2), or (3). North Carolina is the child’s home state, and as

demonstrated by the trial court’s unchallenged findings of fact, the child has

significant connections to North Carolina. She lived here prior to her Mother’s death,

and she has a sibling in North Carolina with her Stepfather. As noted by the trial

court’s findings, there is substantial evidence regarding the child’s welfare in North

Carolina. The only other state which could have possibly had jurisdiction under the

UCCJEA, Michigan, has determined it is not the child’s home state and that North

Carolina is the more appropriate forum. Veneskey, supra, 2021 Mich. App. LEXIS

5147 at *9–13, 2021 WL 3821012 at *4–6. Therefore, although the trial court relied

upon the wrong subdivision of 50A-201(a) to conclude it had jurisdiction, on de novo

review, we conclude North Carolina does have jurisdiction to make an initial child

custody determination under subdivision (a)(4).

D. Custody Determination

¶ 40 Finally, Grandmother argues the trial court erred in dismissing her claim for

custody and in awarding Father full custody because it concluded Father was a fit

parent who has not abdicated his constitutionally protected rights as a parent to

Andrea.

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¶ 41 Our Supreme Court has long established that “natural parents have a

constitutionally protected interest in the companionship, custody, care, and control

of their [biological] children.” Price v. Howard, 346 N.C. 68, 72, 484 S.E.2d 528, 530

(1997); David N. v. Jason N., 359 N.C. 303, 305, 608 S.E.2d 751, 752–53 (2005)

(reaffirming “the paramount right of parents to the custody, care, and control of their

children”). “[T]he Due Process Clause would be offended ‘if a [court] were to attempt

to force the breakup of a natural family . . . without some showing of unfitness and

for the sole reason that to do so was thought to be in the children’s best interest.’”

Adams, 354 N.C. at 61, 550 S.E.2d at 502 (quoting Price, 346 N.C. at 78, 484 S.E.2d

at 534) (alterations from original omitted and own alterations added). As our

Supreme Court has explained, a fit and natural parent “is presumed to act in the

child’s best interest and . . . there is normally no reason for the state to inject itself

into the private realm of the family to further question the ability of that parent to

make the best decisions concerning the rearing of that parent’s [child].” Id., 354 N.C.

at 60, 550 S.E.2d at 501 (quotations and alterations from original omitted) (citing

Troxel v. Granville, 530 U.S. 57, 68–69, 147 L.E.2d 49, 58 (2000)).

¶ 42 “[W]hile a fit and suitable parent is entitled to the custody of his child, it is

equally true that where fitness and suitability are absent he loses this right.” David

N., 359 N.C. at 305, 608 S.E.2d at 753 (quotations and citations omitted); Adams, 354

N.C. at 61, 550 S.E.2d at 502 (“[A] parent’s right to custody is not absolute.”). Indeed,

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the protection afforded to biological parents comes “with similar recognition that

some facts and circumstances, typically those created by the parent, may warrant

abrogation of those interests.” Price, 346 N.C. at 75, 484 S.E.2d at 532; id., 346 N.C.

at 79, 484 S.E.2d at 534 (“[A] parent may no longer enjoy a paramount status if his

or her conduct is inconsistent with this presumption or if he or she fails to shoulder

the responsibilities that are attendant to rearing a child.”). “Unfitness, neglect, and

abandonment clearly constitute conduct inconsistent with the protected status

parents may enjoy.” Id., 346 N.C. at 79, 484 S.E.2d at 534. This is in addition to

“[o]ther types of conduct, which must be viewed on a case-by-case basis . . . .” Id., 346

N.C. at 79, 484 S.E.2d at 534–35. Ultimately, the test our Supreme Court lays out is

that “a natural parent may lose his constitutionally protected right to the control of

his children in one of two ways: (1) by a finding of unfitness of the natural parent, or

(2) where the natural parent’s conduct is inconsistent with his or her constitutionally

protected status.” David N., 359 N.C. at 307, 608 S.E.2d at 753; see also Price, 346

N.C. at 73, 484 S.E.2d at 531 (stating the interest of natural parents “must prevail

against a third party unless the court finds that the parents are unfit or have

neglected the welfare of their children”). A finding of either must be supported by

clear and convincing evidence. David N., 359 N.C. at 307, 608 S.E.2d at 753.

¶ 43 Here, the trial court determined Father was both a fit and proper parent and

he had not abdicated his constitutionally protected right to parent Andrea.

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Grandmother argues this determination is erroneous because she presented clear and

convincing evidence showing Father “did not partake in much of the child rearing

including taking the child to her many doctors’ appointments, only paid child support

twice in 2015 in the over five years that he did not have custody of the child, . . . did

not visit with the minor child upon the end of [his and Mother’s] relationship in

approximately 2015[,]” or thereafter attempt to seek custody; and that he drinks

alcohol. According to Grandmother, this clear and convincing evidence mandated the

trial court conclude Father had abdicated his right to Andrea’s custody and award

custody to Grandmother.

¶ 44 We note a trial court is not bound to render any determination propounded by

a party simply because there is sufficient evidence before it which could tend to

support that determination. Cf. Adams, 354 N.C. at 63, 550 S.E.2d at 503 (explaining

a “trial court’s findings of fact are conclusive on appeal if there is evidence to support

them, even though the evidence might sustain findings to the contrary” (emphasis

added; quotations and citations omitted)). Again, Grandmother challenges the trial

court’s custody determination but does not argue there was insufficient evidence to

support the findings of fact upon which it relied in reaching its conclusion. Our

inquiry thus is to “determine whether the trial court’s findings support its legal

conclusion that” Father did not abdicate his constitutional rights by acting

inconsistent therewith. Id., 354 N.C. at 65, 550 S.E.2d at 504.

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¶ 45 The following findings of fact relevant to the trial court’s custody

determination are unchallenged as supported by the evidence and are thus binding

on us:

9. [Father] learned of the death of [Mother] on the

social media page of a family member of [Mother] and he

immediately returned to North Carolina to pick up his

daughter. He made inquiry with the police department as

well as family members and neighbors as to her

whereabouts.

....

11. The Court finds that within a few days of the

unexpected death of [Mother], [Grandmother] came to

North Carolina from Michigan and removed the child from

the jurisdiction of North Carolina and took her back to

Michigan. [Father] was never informed. [Grandmother]

testified that the thought to notify [Father] never crossed

her mind.

12. [Grandmother] and the [Stepfather] had an attorney

draw up a consent agreement to allow [Grandmother] to

take the child back to Michigan without [Father’s] consent.

. . . The court finds that [Father] did not cede any portion

of his custody rights to [Stepfather] or [Grandmother]

voluntarily as he was never notified of the marriage to

[Stepfather] or the consent agreement removing his child

from the jurisdiction of the court.

13. [Grandmother] made zero efforts to locate [Father]

before secreting the child away. [Father] had family in the

area where the child was residing and the paternal

grandmother [and Grandmother] had previous

communications by phone to discuss the minor child and

exchanged photos of the minor child. At no time was

[Father] or the paternal grandmother given the

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opportunity to visit with the minor child while in the care

of [Grandmother].

14. It is uncontroverted that [Father] and [Mother] had

a tumultuous relationship. They broke up a few times and

got back together. It is common for couples who have a

traumatic breakup to leave custody arrangements of the

child (born of their relationship) open and incomplete as

they navigate the issues. The court finds that the gap of

time that [Father] went without communicating with his

child was not tantamount to abandonment or neglect.

15. [Father] is a person of limited means financially and

educationally. It appears from his testimony and from the

testimony of the paternal grandmother, they were both led

to believe by [Mother] and [Grandmother] that they could

no longer have communication with the minor child. This

is consistent with the years between 2014-2020.

16. There is credible evidence by [Father] and the

paternal grandmother that [Father] did engage in

parenting activities such as feeding, changing and taking

care of the child while [Mother] was at work. The parents

of this minor child were very young, and both acted as such

on multiple occasions, before and after the birth of the

child. This does not make [Father] an unfit parent. He was

not given the opportunity to parent after [Mother] and

child moved away and [Mother] changed her name,

through marriage.

17. During one of their breakups, [Father] and [M]other

attempted to establish a custody agreement including but

not limited to child support. [Father] did actually make two

child support payments before the parties reconciled, and

the agreement became moot. There was never a child

support order entered by any court between the parties

subsequently. . . . .

18. There is credible evidence that after the final

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breakup of [Father] and [Mother], that [Father] was

informed he was not allowed to have any contact with the

minor child due to a pending charge for breaking and

entering which was later dismissed.

19. [Father] remained compliant with the court ordered

no-contact order and believed that any contact with

[Mother] or the minor child would result in his bond being

revoked. This order was in effect between 2015-2016.

During that time period, [Father] did not attempt to

contact [Mother] or the child. His belief that he couldn’t

have contact was reasonable based on the facts and

circumstances at that time.

....

21. After the no-contact order (pursuant to the domestic

charges against [Father]) and the charges were dismissed,

[Father] and the paternal grandmother attempted to locate

the minor child through family inquiries and social media.

[Mother] had a different last name at that point, and they

did not know how to find her. [Mother] did not appear in

court to testify because she had left the state with the

minor child and never informed [Father] where she was

going.

22. [Father] and paternal grandmother did purchase

and mail gifts, cards and letters for the minor child in an

effort to reestablish contact with her. They were sent to

[Grandmother’s] residence in Michigan as [Mother] had a

habit of returning to her mother’s residence when she

needed help from her. Many, if not all, of the cards and gifts

were returned to [Father] by [Grandmother], or “someone”

in the State of Michigan. The testimony of [Grandmother]

that she never saw any of the gifts, cards and letters which

were addressed to the child to her address is not credible.

23. The minor child appeared to be bonded with the

paternal grandmother as well, prior to the child being

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moved around by [Mother] and [Grandmother]. In fact,

[Father] (with the help of the paternal grandmother) and

child’s [M]other were able to make amenable arrangements

for visitations each time the couple broke up.

24. [Grandmother] has not allowed [Father] to have any

contact with the minor child since the death of her

[M]other, even though [Grandmother] has been aware that

he has attempted to locate the child and have a

relationship with her.

25. The minor child has never been informed that

[Stepfather] is not her biological father or that her real

[F]ather even exists. It appears that the intent of

[Grandmother] was to thwart any potential relationship

that the minor child could have with [Father].

26. The Court finds that [Grandmother] has

intentionally tried to hide the minor child from [Father].

[Grandmother’s] testimony that she moved from her home

into a different home right after her daughter’s death

because the memories of her were too painful, is not

credible. It once again appears to the court that it was

another way to hide or secret the child from [Father] now

that she was appointed guardian in an emergency hearing

in Michigan. In fact, it would seem to be more comforting

to the grieving child to be around her [M]other’s memories

and personal belongings, rather than be moved into a place

with no memories.

27. There is no credible evidence that [Father]

voluntarily permitted the minor child to remain in the

custody of [Grandmother] or agreed to allow

[Grandmother] to act in loco parentis to the child. It would

appear from the evidence that long before the [M]other

passed away, [Mother] was moving around excessively in

an effort to alienate the child from her [F]ather and

[Grandmother] was funding those moves. . . .

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28. There is credible evidence to indicate that there were

gaps in time when [Father] did not pursue the minor child’s

whereabouts, however, the court does not find that brief

gaps of time are tantamount to abandonment of the minor

child. [Mother] moved multiple places and got married

with a name change. She never informed [Father] of any of

those moves or changes.

29. . . . [Mother] intentionally left the child with

[Grandmother] for months at a time after [Father] and

[M]other finally split. [Father] was never given the

opportunity to agree or disagree with said placement.

....

32. The minor child has a sibling who is in the custody

of [Father] whom she has never met, and a sibling who

resides with her [Stepfather] . . . .

¶ 46 We note that “[i]n considering whether disruption of custody over an extended

period of time may result in a possible displacement of a parent’s constitutionally

protected interests,” our Supreme Court has “recognized the danger of a fact situation

. . . in which the custodian[] obtained custody unlawfully[:]”

the resolution of cases must not provide incentives for

those likely to take the law into their own hands. Thus,

those who obtain custody of children unlawfully,

particularly by kidnapping, violence, or flight from the

jurisdiction of the courts, must be deterred. Society may

not reward, except at its peril, the lawless because the

passage of time has made correction inexpedient.

Price, 346 N.C. at 81–82, 484 S.E.2d at 536 (quotations, citations, and alterations

from original omitted; own alteration added).

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¶ 47 The trial court’s findings of fact fully support its conclusions that Father did

not act inconsistently with his constitutionally protected status as a natural parent

and was fit to have custody. Cf. Adams, 354 N.C. at 66, 550 S.E.2d at 505 (“The trial

court’s findings of fact are sufficient, when viewed cumulatively, to support its

conclusion that [the natural parent’s] conduct was inconsistent with his protected

interest in the child.”). Grandmother’s argument is based on her contentions

regarding the evidence she presented which she believes would support different

findings of fact and also regarding the best interests of the child. However, the trial

court is the sole judge of credibility of the witnesses. “[T]he trial court sees the parties

in person and listens to all the witnesses. This allows the trial court to detect tenors,

tones and flavors that are lost in the bare printed record read months later by

appellate judges.” Id., 354 N.C. at 63, 550 S.E.2d at 503 (quotations and citations

omitted). And where the natural parent is not unfit and has not acted inconsistently

with his constitutionally protected rights as a parent, even if Grandmother may have

a greater ability to provide for the child, the government may not, “over the objections

of the parent,” remove a child from her natural parent “solely to obtain a better result

for the child.”10 Id., 354 N.C. at 61–62, 550 S.E.2d at 502–503 (quotations and citation

10The evidence from the child’s therapist appointments in Michigan following her Mother’s

death, which Grandmother sought to introduce and argues was erroneously excluded, was

not proffered for the record. In any event, evidence from Andrea’s therapy in Michigan would

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omitted). We conclude the evidence and the trial court’s findings, unchallenged and

binding on appeal, support the trial court’s determination that Father is fit and

proper and has not abdicated his constitutionally protected right to parent Andrea.

Cf. In re Gibbons, 247 N.C. 273, 281, 101 S.E.2d 16, 22 (1957) (“Since the death of his

wife there is little evidence that he has had any great yearning to have his child with

him . . . . Instead he surrendered this high privilege to the grandmother . . . .”

(quotations and citation omitted)). Accordingly, the trial court did not err in its

dismissal of Grandmother’s claim or in its award of full custody to Father.

III. Conclusion

¶ 48 Although the trial court relied upon the wrong subsection of North Carolina

General Statute § 50A-201(a) to conclude North Carolina has jurisdiction under the

UCCJEA, the trial court’s findings of fact support a conclusion that North Carolina

has subject matter jurisdiction over custody under the UCCJEA and Father is a fit

and proper parent who has not abdicated his constitutional rights as a parent. We

therefore affirm the trial court’s orders as to subject matter jurisdiction and custody.

Grandmother’s motion for sanctions under the appellate rules is denied.

AFFIRMED.

not address Father’s circumstances or fitness as a parent under the circumstances of this

case but could relate only to the best interests of the child—an issue neither the trial court

nor we can address.

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Judges HAMPSON and JACKSON concur.