Petition for Writ of Certiorari — Kelly Georgene Routten, Petitioner v. John Tyler Routten

No. ______

In the

Supreme Court of the United States

__________________

KELLY GEORGENE ROUTTEN,

v.

JOHN TYLER ROUTTEN.

__________________

Petitioner,

Respondent.

On Petition for Writ of Certiorari to the

Supreme Court of North Carolina

__________________

PETITION FOR WRIT OF CERTIORARI

__________________

R. DANIEL GIBSON

Counsel of Record

STAM LAW FIRM, PLLC

510 W. Williams Street

Apex, NC 27502

(919) 362-8873

Dan@stamlawfirm.com

Counsel for Petitioner

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTION PRESENTED

The Due Process Claus forbids States from

removing a minor child from a parent’s custody

without a hearing on that parent’s fitness. Stanley v.

Illinois, 405 U.S. 645, 658 (1972) (“all [] parents are

constitutionally entitled to a hearing on their fitness

before their children are removed from their

custody”). The North Carolina Supreme Court held,

in conflict with twenty-eight other state courts of last

resort, that no finding of unfitness is required

because this “right is irrelevant in a custody

proceeding between two natural parents.” Routten v.

Routten, 372 N.C. 571, 577, 843 S.E.2d 154, 159

(2020). The question presented is:

1.

Does due process require a finding that a

parent is unfit before a State denies that parent all

visitation with their child?

ii

PARTIES TO THE PROCEEDINGS

Petitioner (defendant-appellee in the North

Carolina Supreme Court) is Kelly Georgene Routten.

Respondent is John Tyler Routten (plaintiffappellant in the North Carolina Supreme Court).

STATEMENT OF RELATED PROCEEDINGS

Routten v. Routten, P16-419 (N.C. App. July 14, 2016)

Routten v. Routten, Wake County No. 14 CVD 10295

(March 6, 2017)

Routten v. Routten, COA 17-1360 (N.C. App.

November 20, 2018)

Routten v. Routten, 455A18 (N.C. June 5, 2020)

Routten v. Routten, 19-1075 (N.C. App. July 7, 2020)

Routten v. Routten, 455A18-2 (N.C. no judgment

entered yet)

iii

TABLE OF CONTENTS

QUESTION PRESENTED ..........................................i

PARTIES TO THE PROCEEDINGS .........................ii

STATEMENT OF RELATED PROCEEDINGS........ii

TABLE OF CONTENTS ...........................................iii

TABLE OF AUTHORITIES ......................................vi

INTRODUCTION .......................................................1

OPINIONS AND ORDERS BELOW .........................2

JURISDICTION .........................................................2

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ........................................2

STATEMENT OF THE CASE ...................................3

REASONS FOR GRANTING THE PETITION ….....6

I.

The Decision Below Conflicts with This Court’s

Precedent…….....................................…………7

II.

The Decision Below Conflicts with a Majority

of State Courts of Last Resort....................….11

A.

The Conflict Between State Courts of

Last Resort is Intractable.........………12

B.

Eleven States Apply this Court’s Rule

Requiring a Finding of Unfitness Before

Denying a Parent Visitation................13

iv

III.

C.

Seventeen States Apply an Actual Harm

Rule that Conflicts with North

Carolina.…………………………………15

D.

Twelve States Follow North Carolina’s

Judicial Best Interests Rule........….....17

III. This Case Is an Ideal Vehicle to Resolve

Issues of National Importance Affecting Every

Separated

Parent

with

Minor

Children..………………………........................19

A.

This Case is an Ideal Vehicle for

Resolving this Issue...…..............……..20

B.

Allowing Courts to Separate Children

from Fit Parents Harms Children.......21

CONCLUSION..........................................................23

APPENDICES

APPENDIX A—Opinion of The North Carolina

Supreme Court (June 5, 2020) ..................................1a

APPENDIX B—Opinion of The North Carolina Court

of Appeals (November 20, 2018) .............................15a

APPENDIX C—Memorandum of Judgment of The

Wake County District Court (August 4, 2016)…... 65a

APPENDIX D—Child Custody Order of The Wake

County District Court (December 9, 2016) .............68a

v

APPENDIX E—Child Custody Order of The Wake

County District Court (March 6, 2017) ..................83a

APPENDIX

F—N.C.

Gen.

Stat.

§

5013.5………………………………………...………….102a

APPENDIX G—Listing of States Applying the

Judicial Best Interests Rule ………………...........108a

APPENDIX H—Listing of States Applying the Actual

Harm Rule …………………………………………...111a

APPENDIX I—States Applying the Unfitness

Rule …………………………………………………...116a

vi

TABLE OF AUTHORITIES

Page(s)

FEDERAL CASES

Lehr v. Robertson,

463 U.S. 248 (1983) ............................................8, 9

Michael H. v. Gerald D.,

491 U.S. 110 (1989) ................................................8

Moore v. E. Cleveland,

431 U.S. 494 (1977) ................................................8

Parham v. J.R.,

442 U.S. 584 (1979) ..............................................20

Pierce v. Soc'y of Sisters,

268 U.S. 510 (1925) ................................................8

Quilloin v. Walcott,

434 U.S. 246 (1978) ................................................8

Santosky v. Kramer,

455 U.S. 745 (1982) ................................................7

Solomon v. Solomon,

516 F.2d 1018 (3d Cir. 1975) ...............................11

Sosna v. Iowa,

419 U.S. 393 (1975) ..............................................11

Stanley v. Illinois,

405 U.S. 645 (1972) ..................................... passim

vii

Troxel v. Granville,

530 U.S. 57 (2000) ....................................... passim

Wisconsin v. Yoder,

406 U.S. 205 (1972) ................................................8

STATE CASES

Boswell v. Boswell,

352 Md. 204, 721 A.2d 662 (1998) ………...1, 15, 16

Davis v. Davis,

212 Ga. 217, 91 S.E.2d 487 (1956) ……................14

DeSantis v. Pegues,

2011 VT 114, 35 A.3d 152 ……….........................15

Gay v. Cairns,

298 N. W. 2d 313 (Iowa 1980) ……….……...........17

Griffin v. Van Griffin,

267 N.W.2d 733 (Minn. 1978) ………………........15

Hammack v. Wise,

158 W.Va. 343, 211 S.E.2d 118 (1975) ……...13, 14

Layman v. Bohanon,

599 S.W.3d 423 (Ky. 2020) ……………………......18

In re McMenamin,

310 P.2d 381 (Okla. 1957) …………………….......14

Normand v. Barkei,

385 Mass. 851, 434 N.E.2d 631 (1982) ................17

viii

Owenby v. Young,

357 N.C. 142, 579 S.E.2d 268 (2003) ................... 5

Perkinson v. Perkinson,

989 N.E.2d 758 (Ind. 2013) …………..…...….......14

Porter v. Porter,

246 S.C. 332, 143 S.E.2d 619 (1965) ....................15

Routten v. Routten,

262 N.C. App. 436, 822 S.E.2d 436 (2018) ….…….5

Routten v. Routten,

372 N.C. 718, 831 S.E.2d 77 (2019) ……….…......19

Routten v. Routten,

374 N.C. 571, 843 S.E.2d 154 (2020)…….... passim

State ex rel. Wingard v. Sill,

223 Kan. 661, 576 P. 2d 620 (1978) ……..........1, 14

Sullivan v. Bonafonte,

172 Conn. 612, 76 A.2d 69 (1977) ….................1, 17

Taylor v. Taylor,

353 Ark. 69, 110 S.W.3d 731 (2003) ….................15

Turley v. Turley,

5 S.W.3d 162 (Mo. 1999) …..................................15

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. XIV § 1.........................................2

ix

FEDERAL STATUTES

28 U.S.C. § 1257 ..........................................................1

STATE STATUTES

N.C. Gen. Stat. § 50-13.5(i) (2019) .........................3, 6

OTHER AUTHORITIES

Grall, Timothy, CUSTODIAL MOTHERS AND FATHERS

AND THEIR CHILD SUPPORT: 2015, Current

Population Reports, U.S. Census Bureau,

Washington, DC, 2018. ……............................1, 22

1

INTRODUCTION

This case presents an issue affecting every

separated parent with minor children: when a court

may deny a parent all visitation.

This Court recognizes that due process protects a

parent’s “fundamental right” to “the care, custody,

and control of their minor children.” Troxel v.

Granville, 530 U.S. 57, 66 (2000). Unless a parent is

unfit, a court cannot separate parent and child—even

if the court believes it is in the child’s best interests.

Stanley v. Illinois, 405 U.S. 645, 653-658 (1972).

Yet state courts of last resort are split on whether

this precedent is even relevant here. Twelve states

say parents’ rights must yield to a judge’s

determination of what is in the child’s best interests.

E.g., Sullivan v. Bonafonte, 172 Conn. 612, 614, 376

A.2d 69, 71 (1977). Seventeen states say a judge can

limit or deny the right if visitation would harm the

child. E.g., Boswell v. Boswell, 352 Md. 204, 225-238,

721 A.2d 662, 672-678 (1998). Like Stanley, eleven

require a finding of unfitness before denying a parent

visitation. E.g., State ex rel. Wingard v. Sill, 223 Kan.

661, 665, 576 P. 2d 620, 624 (1978).

This question affects the interests of every child

with separated parents and the rights of every

separated parent with children—roughly one in ten

Americans. Grall, Timothy, “CUSTODIAL MOTHERS

AND FATHERS AND THEIR CHILD SUPPORT: 2015,”

Current Population Reports, P60-262, U.S. Census

Bureau, Washington, DC, 2018. It is ripe for decision

2

and needs a uniform national answer. This case

presents the question cleanly and is an ideal vehicle

for answering it. This Court should grant the petition.

OPINIONS AND ORDERS BELOW

The decision of the North Carolina Supreme Court

is reported at 843 S.E.2d 154 (2020), and reprinted at

App., infra 1a-14a. The decision of the North Carolina

Court of Appeals is reported at 822 S.E.2d 436 and

262 N.C. App. 436 (2018), and reprinted at App., infra

15a-64a. The child custody orders are reprinted at

App., infra 65a-101a.

JURISDICTION

The North Carolina Supreme Court issued its

decision on June 5, 2020. This Court has jurisdiction

under 28 U.S.C. § 1257.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Due Process Clause of the Fourteenth

Amendment to the United States Constitution, U.S.

Const. amend. XIV § 1, provides that no state shall

“deprive any person of life, liberty, or property,

without due process of law.”

North Carolina’s child custody statutes are at

Chapter 50 of the General Statutes of North Carolina.

The applicable child custody statute is excerpted at

App., infra 102a-107a. N.C. Gen. Stat. § 50-13.5(i)

(2019) reads:

3

In any case in which an award of child

custody is made in a district court, the

trial judge, prior to denying a parent the

right of reasonable visitation, shall make

a written finding of fact that the parent

being denied visitation rights is an unfit

person to visit the child or that such

visitation rights are not in the best

interest of the child.

STATEMENT OF THE CASE

In August 2016, the Wake County District Court

denied Petitioner Kelly Routten all custody and all

visitation with her minor children. App., infra, 65a67a.

The trial court did so by a handwritten

memorandum of judgment. The memorandum of

judgment form is typically used for a consent order.

Petitioner neither consented to nor stipulated to the

August 2016 memorandum of judgment.

The same day it issued a memorandum of

judgment, the trial court learned that Petitioner had

the results of a court-ordered psychological evaluation

but she may have misled opposing counsel and may

have withheld those results. In late July 2016,

Petitioner moved for a continuance of the August

hearing because, although she had complied with the

order about a psychological evaluation, the “report of

that evaluation ha[d] not been completed yet.”

Petitioner wanted all parties and the trial court to

“have that information and the accompanying expert

testimony before them for [the August] hearing.” The

4

trial court denied Petitioner’s motion to continue and

proceeded with the August 2016 hearing.

Although it did not have the psychological report

yet, the trial court still ordered a change in custody.

Petitioner lost primary physical custody of her

children and she lost all visitation. App., infra, 65a.

The terms of the memorandum of judgment became

part of a December 2016 permanent custody order.

Compare App., infra, 65a-66a; with App., infra, 79a82a.

Petitioner objected to the permanent custody

order. Because the trial court “made no findings of

fact that [Petitioner] was an unfit parent or that she

had acted inconsistent with her protected parental

status,” Petitioner moved for a new trial and relief

from judgment. She argued that denying her custody

and visitation without these findings violated her

“rights as a parent.” The trial court amended its order

and only added six new findings of fact. Compare App.,

infra, 70a-78a with App., infra, 85a-97a. But the trial

court did not find Petitioner unfit. Id. Nor did it find

that visitation would harm her children. Id. Instead,

the trial court concluded that visitation with

Petitioner was not in the best interests of her children.

App., infra, 97a.

Petitioner appealed to the North Carolina Court of

Appeals. She raised several issues on appeal. The

first issue she raised was whether “the trial court

violate[d] [Petitioner’s] due process rights under the

[F]ourteenth [A]mendment of the U.S. Constitution

and the law of the land clause of the North Carolina

5

Constitution?” She argued the trial court violated due

process by denying her all visitation without finding

her unfit.

The North Carolina Court of Appeals agreed with

Petitioner on that issue. The Court of Appeals held a

judge must find, by clear and convincing evidence,

that a parent is unfit or has acted inconsistently with

her constitutionally protected status before it can

deny a parent visitation. Routten v. Routten, 262 N.C.

App. 436, 445-446, 822 S.E.2d 436, 443 (2018) (citing

Owenby v. Young, 357 N.C. 142, 148, 579 S.E.2d at 268

(2003)). It held this because due process “ensures that

the government does not impermissibly infringe upon

a natural parent’s paramount right to custody solely

to obtain a better result for the child.” Id., at 446, 822

S.E.2d, at 443. The court also treated the trial court’s

usage of “electronic visitation” as a misnomer. Id., at

445, 822 S.E.2d, at 443. “Electronic communication,”

the court held, “may not be used as a replacement or

substitution for custody or visitation.” Id. (emphasis

original) (quoting N.C. Gen. Stat. § 50-13.2(e)).

A dissenting opinion argued Petitioner could not

claim the right to visitation because custody cases

between parents differ from cases by non-parents

against parents. Id., at 459-460, 822 S.E.2d, at 451452 (Inman, J, dissenting). The dissent reasoned this

difference meant a “parent’s constitutional right is

irrelevant in a custody dispute with the other parent.”

Id., at 460, 822 S.E.2d, at 452 (emphasis original).

6

Respondent appealed to the North Carolina

Supreme Court based on the dissent. At the North

Carolina Supreme Court, Petitioner again argued that

“terminating [her] visitation deprive[d] her of due

process.” Citing this Court’s decision in Stanley v.

Illinois, Petitioner contended that “due process

protect[ed] [her] from being deprived of her children

without a finding that she is unfit.”

Without citing Stanley, the North Carolina

Supreme Court reversed the Court of Appeals and

affirmed the trial court. The North Carolina Supreme

Court held that a parent’s “protected right is

irrelevant in a custody proceeding between two

natural parents.” Routten v. Routten, 374 N.C. 571,

577, 843 S.E.2d 154, 159 (2020). Its decision cited no

United States Supreme Court precedent. Instead, the

North Carolina Supreme Court relied on its own

precedent and N.C. Gen. Stat. § 50-13.5(i) (2019) to

reach its holding.

REASONS FOR GRANTING THE PETITION

Certiorari is warranted for three reasons. First,

the North Carolina Supreme Court’s holding conflicts

with this Court’s holdings in Stanley and the cases

following it. Second, there is a well-developed and

intractable split between state courts of last resort

over the question presented. Third, the question is

exceptionally important, is ripe for review, and

requires a uniform national answer.

7

I.

The Decision Below Conflicts with This

Court’s Precedent.

This Court has recognized that parents have a

“fundamental liberty interest” in the “care, custody,

and control” of their minor children. Troxel, 530 U.S.,

at 65. The Due Process Claus of the Fourteenth

Amendment protects “the fundamental right of

parents to make decisions concerning the care,

custody, and control of their children.” Id., at 66.

In Stanley an unwed father sought custody of his

children. Stanley, 405 U.S., at 646. Because their

mother was deceased and Stanley never married her,

Illinois law presumed Stanley unfit and denied him

custody and visitation. Id. Stanley argued Illinois

denied him due process and equal protection of law.

Id., at 647.

This Court agreed with Stanley. The right to

“raise one’s own children” is a “basic civil right” “far

more precious…than property rights.” Id., at 651.

Due process protects this right. Id. The State has a

legitimate interest in protecting minor children’s best

interests. Id., at 652-653. But the State “spites its

own articulated goals” when it “separates children

from the custody of fit parents.” Id., at 652. As “a

matter of due process of law, Stanley was entitled to a

hearing on his fitness as a parent before his children

were taken from him.” Id., at 648. All fit parents have

a due process right to see their children. Id., at 658.

8

This Court has applied the protected right in

several circumstances. Troxel applied the right to

overturn a Washington grandparent visitation statute.

Troxel, 530 U.S., at 57-58 (holding unconstitutional a

statute that allowed courts to “disregard and overturn

any decision by a fit custodial parent concerning

visitation whenever a third party affected by the

decision files a visitation petition, based solely on the

judge's determination of the child's best interest”).

Even if parents “have not been model parents or have

lost temporary custody of their child to the State,” the

right is still relevant. Santosky v. Kramer, 455 U.S.

745, 753 (1982). This is because “the State’s interest

in caring for the children is ‘de minimis’ if the [parent]

is in fact a fit parent.” Quilloin v. Walcott, 434 U.S.

246, 248 (1978).

Even when this Court has limited the protected

right, it has still recognized its relevance. See Michael

H. v. Gerald D., 491 U.S. 110, 126 (1989) (plurality

affirming California law presuming children born in

wedlock are legitimate); Lehr v. Robertson, 463 U.S.

248, 262 (1983) (“unwed father” must “demonstrate[]

a full commitment to the responsibilities of

parenthood” to “acquire[] substantial protection under

the Due Process Clause”). In those cases, this Court

did not give natural parents the benefit of the

protected right because those parents had never acted

as parents or had custody. Stanley, on the other hand,

addressed removing custody from a parent who

already had it. 405 U.S., at 649. Those cases turned

on “[t]he difference between the developed parent-

9

child relationship” and a “potential relationship.” E.g.,

Lehr, 463 U.S., at 261.

Because of the importance of maintaining a

developed parent-child relationship, this Court has

applied this precedent broadly, even outside the child

custody context. This precedent is relevant to zoning

regulations that infringe on the family. Moore v. E.

Cleveland, 431 U.S. 494, 500-501 (1977). It is relevant

to school regulations. Wisconsin v. Yoder, 406 U.S.

205, 233 (1972); Pierce v. Soc'y of Sisters, 268 U.S. 510,

535, (1925) (“the child is not the mere creature of the

State; those who nurture him and direct his destiny

have the right, coupled with the high duty, to

recognize and prepare him for additional

obligations.”). In the kaleidoscope of circumstances

this Court has addressed, one rule remains constant:

due process requires a hearing on fitness before the

State separates parent and child.

Yet North Carolina held “the protected right is

irrelevant in a custody proceeding between two

natural parents.” Routten, 374 N.C., at 577, 843

S.E.2d, at 159. North Carolina denied that a fit

parent is entitled to any presumption in favor of

custody or visitation. Id., at 575, 843 S.E.2d, at 158.

So, in North Carolina, a trial court can deny a mother

all custody and visitation without even considering

that mother’s fundamental right to the care, custody,

and control of her minor children.

North Carolina’s decision relied on a distinction

this Court has never recognized. North Carolina

10

distinguished custody cases between two parents from

all other custody cases. Routten, 374 N.C., at 577, 843

S.E.2d, at 159. This Court has recognized the

distinction

between

existing

parent-child

relationships and potential parent-child relationships.

Lehr, 463 U.S., at 261 (“The difference between the

developed parent-child relationship that was

implicated in Stanley and Caban, and the potential

relationship involved in Quilloin and this case, is both

clear and significant”). But it has never recognized

the distinction North Carolina created below. That

distinction conflicts with this Court’s precedent and

relies on arguments this Court has rejected.

Routten recites the same arguments this Court

rejected in Stanley. In Stanley, Illinois argued that an

“unwed father’s claim of parental qualification” was

“irrelevant.” Stanley, 405 U.S., at 650. Like the

argument by Illinois this Court rejected in Stanley,

North Carolina says, “the protected right is irrelevant.”

Routten, 374 N.C., at 577, 843 S.E.2d, at 159. North

Carolina says a trial court’s determination of the best

interests alone is enough to deny custody and

visitation. Id., at 575, 843 S.2d., at 157-158. Illinois

argued the same in Stanley: “the only relevant

consideration” is “whether the best interests of the

child are served by [State] intervention.” Stanley, 403

U.S., at 653, n. 5. Stanley rejected North Carolina’s

arguments. But North Carolina’s decision did not

distinguish Stanley or this Court’s cases relying on

Stanley.

11

Indeed, North Carolina’s decision did not cite

Stanley or any case from this Court. Instead, North

Carolina directly disagreed with this Court. While

North Carolina says the “protected right is irrelevant,”

this Court holds “all [] parents are constitutionally

entitled to a hearing on their fitness before their

children are removed from their custody.” Compare

Routten, 374 N.C., at 577, 843 S.E.2d, at 159 with

Stanley, 403 U.S., at 658 (1972). While North

Carolina says

“no constitutionally based

presumption…bars the award of full custody to one

parent without visitation to the other,” this Court

enforces “the traditional presumption that a fit parent

will act in the best interest of his or her child.”

Compare Routten, 374 N.C., at 576, 843 S.E.2d, at 158

with Troxel, 530 U.S., at 69.

North Carolina

disregarded this presumption and Stanley’s fitness

hearing requirement.

When this Court holds one thing and a state court

of last resort holds the opposite, the state court’s

holding conflicts with this Court and certiorari is

appropriate.

North Carolina’s holding below

contradicts this Court’s holdings in Stanley, Troxel,

and the cases that follow on them. This Court should

grant certiorari because North Carolina’s decision

conflicts with this Court’s precedent.

II.

The Decision Below Conflicts with a

Majority of State Courts of Last Resort.

North Carolina’s decision does not just conflict

with this Court’s precedent; it conflicts with a majority

12

of state courts of last resort. State courts of last resort

disagree about what due process requires and whether

parents’ rights are relevant in a custody case between

natural parents. This Court should grant certiorari to

resolve this conflict and clarify that Stanley applies to

custody disputes between natural parents.

A. The Conflict Between State Courts of Last

Resort is Intractable.

State courts of last resort apply one of three rules

when deciding whether a judge can deny a parent

visitation: the judicial best interests rule, the actual

harm rule, or the unfitness rule. No federal court has

reached this issue because federal courts typically

lack jurisdiction over child custody cases. E.g., Sosna

v. Iowa, 419 U.S. 393, 404 (1975); Solomon v. Solomon,

516 F.2d 1018 (3d Cir. 1975). Twelve states, including

North Carolina, allow a judge to deny a parent

visitation just because the judge believes it is in the

child’s best interests (“the judicial best interests

rule”). 1 Seventeen states require a judge to find that

visitation would harm the child before denying a

parent visitation (“the actual harm rule”). 2 Eleven

1 Appendix G (108a-110a) lists the states applying the judicial

best interests ruling, including a quote from the relevant holding.

2 Appendix

H (111a-115a) lists the states applying the actual

harm rule, including a quote from the relevant holding.

13

states only allow a judge to deny a parent visitation if

the parent is unfit (“the unfitness rule”). 3

This conflict is not merely semantic. It is a conflict

about parents’ due process rights and this Court’s

precedent. The judicial best interests rule provides

that a judge’s decision about best interests is all that

matters—and Stanley is irrelevant. The actual harm

rule says parents’ rights matter but a judge can limit

those rights if a parent harms his or her children.

Like Stanley and this Court’s cases following it, the

unfitness rule says a parent must be unfit before a

court can deny that parent visitation.

This conflict creates a secondary disagreement

about what the bests interests of the child means. The

judicial best interests rule says bests interests means

whatever the judge says it means. The actual harm

rule says best interests means a non-harmful

relationship. The unfitness rule says best interests

means maintaining the parent-child relationship if

the parent is fit. These differences in law mean they

rule differently on the same facts.

Consider Petitioner’s case. The trial court denied

her visitation without finding her unfit. It did not find

she had harmed her children. It did not find that

visitation would harm her children. North Carolina

applied the judicial best interests rule. A different

rule would mean a different result. If it had applied

the actual harm rule, it may have remanded to the

3 Appendix I (116a-119a) lists the states applying the unfitness

rule, including a quote from the relevant holding.

14

trial court to find more facts about whether visitation

would harm her children. If it had applied the

unfitness rule, it would have reversed because there

was no evidence Petitioner was unfit.

When states reach different results on the same

facts because they disagree about what the law is,

their conflict is intractable. Looking more closely at

the different rules shows how deep the conflict goes.

B. Eleven States Apply this Court’s Rule

Requiring a Finding of Unfitness Before

Denying a Parent Visitation.

The unfitness rule ties parents’ rights to children’s

interests. Fit parents act in their children’s best

interests. So visitation with a fit parent is in the

children’s best interests. Unless a parent is unfit, a

judge cannot deny a parent visitation.

The “welfare of the child” is important, but it

cannot “deprive an unoffending parent of his natural

right to the custody of his child.” Hammack v. Wise,

158 W.Va. 343, 346, 211 S.E.2d 118, 121 (1975). A

parent has a “natural right” to “visit the child.” In re

McMenamin, 310 P.2d 381, 382 (Okla. 1957). A

parent may forfeit this right by “misconduct, neglect,

immorality, abandonment, or other dereliction of

duty.” Hammack, 158 W.Va., at 346, 211 S.E.2d, at

121. But a parent must “forfeit [this] right in a

manner recognized by law” for the court to have

“authority to interfere.” Davis v. Davis, 212 Ga. 217,

218, 91 S.E.2d 487, 489 (1956).

15

Several states applying the unfitness rule do so

because of this Court’s precedent. A parent’s interest

in the “care, custody, and control of their children” is

“perhaps the oldest of the fundamental liberty

interests recognized by [the United States Supreme

Court.]” Perkinson v. Perkinson, 989 N.E.2d 758, 761

(Ind. 2013) (quoting Troxel, 530 U.S., at 65). This

liberty interest—which the unfitness rule terms a

natural right—means that a “fit and proper parent is

entitled to have access to and at reasonable times visit”

their children. State ex rel. Wingard v. Sill, 223 Kan.,

at 665, 576 P.2d, at 624-625 (quoting Stanley v.

Illinois, 405 U.S. 645 (1972)).

North Carolina did not find Petitioner unfit. No

evidence supports a conclusion that she is unfit. If she

is a fit parent, this Court presumes she acts in her

children’s best interests. Without finding her unfit,

the trial court could not deny her reasonable visitation

with her children. The unfitness rule requires

reversal here.

C. Seventeen States Apply an Actual Harm

Rule that Conflicts with North Carolina.

The actual harm rule starts with a similar

premise to the unfitness rule:

visitation is

presumptively in a child’s best interests. But it

reaches a different conclusion: denying a parent

visitation is only in the child’s best interests if it would

harm the child. This rule sometimes sounds like the

judicial best interests rule but it applies a different

definition of best interests. A judge cannot simply

16

decide visitation is not in the child’s best interests, she

must support this decision with facts showing harm.

Those facts must relate to the child and visitation.

E.g., Taylor v. Taylor, 353 Ark. 69, 83, 110 S.W.2d 731,

739 (2003); Turley v. Turley, 5 S.W.3d 162, 164 (Mo.

1999) (quoting Mo. Rev. Stat. § 452.400.2 (2019));

Porter v. Porter, 246 S.C. 332, 340-341, 143 S.E.2d 619,

624 (1965). In some states, the court must find those

facts by more than a preponderance of the evidence.

Griffin v. Van Griffin, 267 N.W.2d 733, 735 (Minn.

1978) (persuasive evidence); DeSantis v. Pegues, 2011

VT 114 ¶ 20, 35 A.3d 152, 162 (clear and convincing

evidence).

A judge cannot deny a parent visitation just

because that parent says, believes, or does things the

judge does not like. Boswell 352 Md. 204, 721 A.2d

662 (1998). After they separated, the father in

Boswell told his wife he was homosexual. Id., at 210,

721 A.2d, at 664. The trial court ordered him not to

have visitation with “anyone having homosexual

tendencies or such persuasions” and denied him

overnight visits with his children. Id., at 211, 721

A.2d, at 665. His ex-wife did not even ask for these

limits.

The Maryland Supreme Court reversed. Parents

presumptively get “liberal unrestricted visitation.” Id.,

at 221 721 A.2d, at 671. Unless “the best interests of

the child would be endangered by [visits],” a court

cannot deny visitation. Id. General harm is not

enough. The court must first find “adverse impact”

then “find a nexus between the child’s emotional

17

and/or physical harm and the contact with the nonmarital partner.” Id., at 237, 721 A.2d, at 678. The

trial court did not make these findings, so it could not

restrict the father’s visitation rights. Id.

Like the trial court in Boswell, the trial court here

made no findings that visitation did or could harm

Petitioner’s children. The only finding it made about

visitation is that some person unrelated to Petitioner

acted aggressively at a custody exchange. App., infra,

75a-76a, 93a. The trial court did not find that

Petitioner’s children even saw this interaction.

Because no facts showed visitation harmed her

children, the actual harm rule says visitation would

be in Petitioner’s children’s best interests.

D. Twelve States Follow North Carolina’s

Judicial Best Interests Rule.

The judicial best interests rule focuses on judges.

A judge’s decision about what is in the children’s best

interests is all that matters. Unlike the actual harm

rule, the judge need not find any specific facts or

specific harms. Unlike the unfitness rule, the judge

need not find the parent unfit or apply any

presumption in favor of visitation. If the judge

believes denying visitation is in the children’s best

interests, she can deny a fit parent visitation.

Some states applying this rule hold that the

parent who wants visitation must prove that

visitation would be in their children’s best interests.

E.g., Normand v. Barkei, 385 Mass. 851, 852-853, 434

N.E.2d 631, 632-633 (1982); Gay v. Cairns, 298 N. W.

18

2d 313, 315 (Iowa 1980). Others let a judge deny a

parent visitation even if that parent is fit. E.g.,

Routten, 374 N.C., at 577, 843 S.E.2d, at 159; Sullivan,

172 Conn., at 614, 376 A.2d, at 72.

A parent who pays child support and is a loving,

qualified parent may not get visitation under the

judicial best interests rule. Sullivan, 172 Conn., at

612, 376 A.2d., at 71. In Sullivan, a natural parent

sought visitation with his son. Id. He paid medical

bills for his son’s birth, paid child support, and gave

his son gifts. Id. Even so, Connecticut denied him

visitation. He did not prove his children “needed to

have an opportunity to develop a relationship with

[him.]” Id., at 614, 376 A.2d, at 72. So the trial court

could deny him visitation because “the legal rights of

no one, even a parent, may militate against the court’s

determination of the best interests of the child.” Id.

North Carolina went further than Connecticut.

Connecticut recognized parents’ rights could be

relevant. North Carolina said they are “irrelevant.”

Routten, 374 N.C., at 577, 843 S.E.2d, at 159. But the

result is the same: a judge decides what is in the

children’s best interests and the parent must prove

the judge wrong.

***

Under the same facts, each rule gives a different

result. The conflict is intractable and well-developed.

Forty state courts of last resort have applied one of

these rules from 1949 to today—including two

conflicting rulings in 2020. Compare Routten, 374

19

N.C., at 577, 843 S.E.2d, at 159 with Layman v.

Bohanon, 599 S.W.3d 423, 429 (Ky. 2020). Almost

every state court of last resort has ruled here. And

they have ruled in ways that contradict one another.

State courts of last resort need clarity. Applying this

Court’s precedent in Stanley and the cases that rely

on it will provide needed clarity.

III.

This Case Is an Ideal Vehicle to

Resolve Issues of National Importance

Affecting Every Separated Parent with

Minor Children.

The current conflict in state law does not protect

parents or children. This case is an ideal vehicle for

resolving the due process visitation rights of parents.

It cleanly presents the question, has no jurisdictional

defects, and raises no other questions. The question

it does raise is of national importance—it affects more

than one in ten Americans—and requires a uniform

national answer.

Without a uniform national answer, parents could

lose or gain rights just because they move. Parents

and their children routinely move. Children who were

born in one state may be unable to see a parent

because of differing state rules.

Fourteenth

Amendment due process does not change with state

borders. Nor should parents’ due process rights

change when they cross state borders. Lacking a

uniform national answer denies parents’ rights and

jeopardizes children’s best interests.

20

A. This Case is an Ideal Vehicle for Resolving

this Issue.

This case cleanly presents the question of when a

judge may deny a parent visitation. The trial court

denied Petitioner visitation. She objected. The trial

court found only a few additional facts but still denied

her visitation. This appeal is not about those facts.

Due process was the only issue before the North

Carolina Supreme Court. Routten v. Routten, 372 N.C.

718, 831 S.E.2d 77 (2019) (denying discretionary

review on other issues).

The North Carolina Supreme Court could have

also decided a collateral issue—whether a trial court

can give a custodial parent discretion to allow

visitation—but it declined to do so. The North

Carolina Court of Appeals has held a trial court

cannot delegate the discretion to allow visitation to a

parent. Routten, 374 N.C., at 579, 843 S.E.2d., at 159.

The North Carolina Supreme Court did not affect this

precedent. Because a trial court can “deny any

visitation,” the North Carolina Supreme Court held

discretionary visitation was “mere surplusage” here.

Id. The North Carolina Supreme Court decided the

only issue it had to decide: whether the trial court

violated Petitioner’s due process rights by denying her

all visitation. And Petitioner raised that issue at

every stage of this case.

The North Carolina Supreme Court only

addressed legal issues. It did not address whether the

evidence was sufficient to support the findings of fact

21

or the findings of fact supported the conclusion of law.

Petitioner preserved her arguments, so the court did

not address issue preservation. No court ruling on

this case has noted jurisdictional defects because

there are none.

Instead, those courts cleanly

addressed the legal issues. This case cleanly presents

those same legal issues here, making it an ideal

vehicle to address them.

B. Allowing Courts to Separate Children from

Fit Parents Harms Children.

Denying a fit parent custody and visitation does

not just harm the parent, it harms the children too.

This Court protects parents’ rights to protect

children’s interests.

This Court has “historically recognized that

natural bonds of affection lead parents to act in the

best interests of their children.” Troxel, 530 U.S., at

66 (citing Parham v. J. R., 442 U.S. 584, 602 (1979)).

Thus, a fit parent is presumed to act in the best

interests of her children. Id. Requiring a finding of

unfitness before separating parent from child not only

vindicates the parent’s rights, it protects the child.

The State’s interest in separating parents and

children is protecting the best interests of the children.

But the State “registers no gain…when it separates

children from the custody of fit parents.” Stanley, 403

U.S., at 652 (1972). Rather than promoting the best

interest of the children, the State “spites its own

articulated goals when it needlessly separates [a fit

22

mother] from [her] family” Id., at 652-653. Parents’

rights do not simply protect parents; they protect

children from being needlessly separated from their

parents.

Parental rights are ultimately about both parent

and child. North Carolina’s rule allows a trial court

to substitute its beliefs about children’s best interests

without considering either parent or child. The trial

court did not enter any findings of fact about

Petitioner’s fitness as a mother. It did not find that

she had harmed her children. It did not find that she

neglected her children. In fact, it made no finding that

any visitation ever had any effect on her children.

Nor did the trial court consider its order’s effect on

Petitioner’s children. Separating children from fit

parents harms them. The trial court made no finding

of fact about how denying Petitioner visitation would

affect her children. Nor did the trial court make any

finding justifying this denial as promoting her

children’s best interests.

It largely ignored

Petitioner’s children and simply substituted its own

determination of their best interests for a factual

analysis of their best interests.

North Carolina’s rule treats parents’ rights and

children’s interests as irrelevant. Allowing a trial

court to inject itself into the family with no findings of

fact justifying its interference vitiates parents’ rights

and endangers children.

23

More than twenty-two million children have

separated parents.

Grall, Timothy, “CUSTODIAL

MOTHERS AND FATHERS AND THEIR CHILD SUPPORT:

2015,” Current Population Reports, P60-262, U.S.

Census Bureau, Washington, DC, 2018. And nearly

fourteen million parents are separated. Id. This case

implicates the rights of every separated parent and

the best interests of every child with separated

parents. The interests of thirty-six million parents

and children—more than one in ten Americans—are

at stake. This Court should grant certiorari to

vindicate those parents and protect those children.

24

CONCLUSION

The petition for certiorari should be granted.

Respectfully submitted,

/s/ R. Daniel Gibson

R. DANIEL GIBSON

Counsel of Record

STAM LAW FIRM, PLLC

510 W. Williams Street

Apex, NC 27502

Tel: 919-362-8873

Fax: 919-387-7329

Dan@stamlawfirm.com

Counsel for Petitioner

Date: November 2, 2020