Petition for Writ of Certiorari — Seitz v. Speagle
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No.
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Supreme Court of the Cited States
CHRISTY LYNETTE HOLLAND SEITZ,
Petitioner,
WILLIAM SPEAGLE, and
wife, DERENE SPEAGLE,
Respondents.
ON PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF NORTH CAROLINA
7
Petition for Writ of Certiorari
.
M. Gordon Widenhouse, Jr.
Counsel of Record
RUDOLF, MAHER,
WIDENHOUSE & FIALKO
312 West Franklin Street
Chapel Hill, NC 27516 -
(919) 967-4900
Counsel for Petitioner
THE LEX GROUP @ 1108 East Main Street ¢ Suite 1400 # Richmond, Virginia 23219
(804) 644-4419 ¢ (800) 856-4419 ¢ Fax: (804) 644-3660 ¢ www.thelexgroup.com
QUESTION PRESENTED
Whether a_ state violates a mother’s
constitutionally protected right to custody of her
daughter when it uses a “best interests of the child”
analysis to deny the mother custody in favor of a
non-parent third-party by finding the mother unfit
based solely on past conduct that no longer exists
proved only by a preponderance of the evidence?
TABLE OF CONTENTS
Page
QUESTION PRESENTED...............cccccccccccccssscssesecsescssscesees i
RR AE StI UII Oi csnceccchncnccaseuiisisshussenintensassasiannoiansens ii
BER PAT U EEE II vacisccecdsnexscssisisisiansssnsdssasoensonsons iv
RI IRIN ssicnslinnnccascscdsssidepiainynipabieigacnGnsialesctutinast 2
IRANI rssh tesissonsesesciinenionasnitaahaniedadamieasscidiemannen 2
CONSTITUTIONAL AMENDMENT
NII IIIT chasse asdetlsnate ilentecindsonisnoniinaemnosieudlicdebiensisaeass 2
STATEMENT OF THE CASE ..........c.cccsccssseccscceseceseasceesees 3
A. PRO AL, FEES EIR Y, cccccaceccesecocsnsenses 3
B. FACTUAL BACKGROUND .......0...00000000. 7
Manner In Which The Federal
Constitutional Issue Was Raised
And Decided Below ...............cccccccseeseeeeee 13
REASONS WHY CERTIORARI
PEAR Ws RAMRPAI BAUD nsnniesensevescsensansesdiccsnnssehsnesenaconsons 15
il
THE COURT BELOW VIOLATED A
MOTHER’S DUE PROCESS RIGHT TO
THE CUSTODY OF HER DAUGHTER
WHEN IT USED A “BEST INTERESTS OF
THE CHILD” ANALYSIS TO DENY HER
CUSTODY IN FAVOR OF A THIRD
PARTY BY FINDING HER UNFIT BASED
SOLELY ON PAST, DISTANT
CONDUCT FOUND ONLY BY A
PREPONDERANCE OF THE EVIDENCE..
A. Due Process Protected
Christy Seitz’s Right to the
Custody of Her Daughter,
Which the Courts Below
eee Tce ag
B. The Lower Court's Use
of a Preponderance of
the Evidence Standard
Unconstitutionally Shifted
the Burden of Proof to the
Natural Parent/Mother and
Away from a Third Party........
S. No Evidence Showed
Christy Seitz was an Unfit
er
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Pe IG scnincdkcalaiendiiidintsuaniseadndcedpapaasitaionioontontonntde
ill
TABLE OF AUTHORITIES
Page(s)
Cases:
In re Adoption of E.L.,
315 Ill. App. 3d 137,
733 N.E.2d 846 (2000)... eececcccecscssecsssceccceeeseee aL
In re Adoption of a Female Child,
896 S.W.2d 546 (Tenn. 1995) ooo eccccecccccccecce. 17, 26
Davis v. Collinsworth,
771 S.W.2d 329 (Ky. 1989)... cccccceccccsseseeceeese. 16, 21
Deel v. Deel,
113 Mich. App. 556,
317 N.W.2d 685 (1982) ooccccccecccssescsecssesssesseseeeeceses. 22
Greer v. Alexander,
248 Mich. App. 259,
639 N.W.2d 39 (2001)... eeeeeecccccsecscscesseeceseece. 16, 22
In re Guardianship of L.L.,
745 N.E.2d 222 (Ind. App. 2001)......0.cccccc.... 16, 23
Hamers v. Guttormson,
610 N.E.3d 758 (N.D. 2000) .oeeececccccccccscecee 17, 26
Heltzel v. Heltzel,
248 Mich. App. 1,
638 N.W.2d 123 (2001) oocceecceccccsccseccsesssccssecsseee 22, 24
Hendnckson v. Binkley,
316 N.E.2d 376 (Ind. App. 1975).........:cccsseeeees 23
Lehr v. Robertson,
GD VUE. Ee CFE witht 5, 14,19
Mason v. City of Biloxi,
SOS ID. SO IFO) exciscisnitisinicsenetantaaeanel 14
Overfield v. Collins,
199 W.Va. 27, 483 S.E.2d 27 (1997) .........cscscseseeeees 23
In re Parenting of ].N.P.,
305 Mont. 351, 27 P.3d 953 (2001).................00... 16
Parham v. ].R.,
442 US. FO (Rot Oe scsstiistanein ee 18-19
In re S.B.L.,
150 Vt. 294, 553 A.2d 1078 (1988) ..............:.ccccceees 10
Santosky v. Kramer,
435 US. 765 (BD siiccesvsentdaionia passim
Stanley v. Illinois,
GIS US. CED (EGGS) sinicicermcitinimsanann 2,5, 17, 21
Torrance v. Callenius,
SGD US. Cae (IIS ED scncitncscncsinsccesegenaaaee 14
Troxel v. Granville,
FOO US. ST (AFGG) tvieninssinniccismaada passim
Wisconsin v. Yoder,
Gb US. TIS 856 ED ccvguinstitntieemaanal 14
Constitutional Provisions:
USS. Const., armend. XIV .........ccccccesseseeeeseenennseenennnenees 2,18
Statute:
QB U.S.C. §1257(a) .......-cecesesecssescnesererenessssncssnssecscsaceesenenenens 2
Rules:
Fed. R. App. P. 41(d)(1)-......-.:-sessesessessessseeenenneenseneensenncens 2
N.C. R. App. P. 31(a) ...-..-sssssesessessessesseensenennennsnnentansensnnsens 6
N.C. R. App. P. 32(b) ....-.e:sesssessessessessesssneeneeneenennenneenscensen 1
N.C. R. App. P. 32(€) ....-.-sssessecsessscesssssnsesnennenneaneanennsensenncens 2
vi
IN THE
SUPREME COURT OF THE UNITED STATES
he ee ee ee ee ae ee ae ae a a oe a a Oe eo
CHRISTY LYNETTE HOLLAND SEITZ,
Petitioner,
Vv.
WILLIAM SPEAGLE, and wife, DERENE SPEAGLE,
Respondents.
she oe ee ae ae ee a ee ao
PETITION FOR WRIT OF CERTIORARI
TO THE SUPREME COURT
OF NORTH CAROLINA
ie ee Oe ee a a a a
Petitioner, Christy Lynette Holland Seitz
(hereinafter Christy], respectfully prays that a writ of
certiorari issue to review the attached opinion of the
Supreme Court of North Carolina, filed on 18
December 2001 [App. 1-14], upon which the judgment
of the Supreme Court of North Carolina was entered
on 7 January 2002.! [App. 49-50] This opinion is starkly
at odds with the consistent jurisprudence of this Court
endorsing the constitutionally protected right of a
mother to the care, custody, and nurturing of her child
that is superior to a non-parent, third party where the
The opinion of the Supreme Court of North Carolina was
filed on 18 December 2001. The actual judgment is entered on the ©
docket by the clerk 20 days after the filing of the opinion. N.C. R.
App. P. 32(b).
1
mother has not been legitimately determined unfit to
raise her daughter. See, e.g., Troxel v. Granville, 530 U.S.
57, 66 (2000); Santosky v. Kramer, 455 U.S. 745, 753
(1082); Stanley v. Illinois, 405 U.S. 645, 651 (1972).
OPINIONS BELOW
The opinion of the Supreme Court of North
Carolina is published at 354 N.C. 525, 557 S.E.2d 83
(2001). [App. 1-15] The court below denied a petition
for rehearing on 31 January 2002.2 [App. 47-48] The
opinion of the North Carolina Court of Appeals, which
was reversed by the court below, is published at 141
N.C. App. 534, 541 S.E.2d 188 (2000). [App. 15-20]
JURISDICTION
The judgment of the Supreme Court of North
Carolina was entered on 7 January 2002. [App. 49-50]
The petition is from a final judgment of the Supreme
Court of North Carolina. Jurisdiction of this Court is
invoked pursuant to 28 U.S.C. §1257(a), as the state has
denied petitioner her right and privilege to the care,
custody, and control of her daughter over a non-
parent, third party, which is protected by due process.
CONSTITUTIONAL AMENDMENT INVOLVED
U.S. Const., amend. XIV: No state shall...
deprive any person of life, liberty, or property, without
due process of law....
2 In North Carolina, unlike the federal system, see Fed. R.
App. P. 41(d)(1), the filing of a petition for rehearing in an
appellate court has no effect of the date a judgment is entered on
the docket. N.C. R. App. P. 31(e).
2
+
STATEMENT OF THE CASE
A. PROCEDURAL HISTORY.
On 3 September 1993 petitioner, Christy Seitz
gave birth to her daughter, Amber, who is the subject of
this custody litigation. Christy was not married to
Amber's father, Stacey Speagle. After two years during
which Christy and Stacey lived together, separated,
reconciled, and separated again, Stacey filed an action
seeking custody on 8 September 1995, just after Amber’s
second birthday. On 17 October 1995, a temporary
custody order was entered under which Christy was to
have custody of Amber for fourteen days and Stacey
was to have custody of Amber for fourteen days.
On 29 January 1996, Bryce Delon murdered
Stacey and then killed himself. Christy was arrested on
January 29 and charged with conspiring to have Stacey
killed. The following day, respondents filed a complaint
seeking permanent custody of Amber. An emergency
order was entered granting custody of Amber to
respondents. Christy duly filed an answer to the
custody complaint. She was eventually released on
bond pending trial on the conspiracy charge and sought
to regain custody of Amber. Her motion for temporary
custody was denied on 2 May 1996. After Stacey’s
death, his original custody action abated. Following a
jury trial at which she testified, Christy was acquitted of
the homicide charge on 27 June 1997. On 19 August
1997, she was granted visitation rights with Amber
pending the final outcome of the custody proceedings.
The custody trial began on 11 August 1998 and
concluded on 4 September 1998. The trial court
announced its oral decision on September 4, awarding
custody to respondents but granting “liberal visitation”
3
to Christy. In doing so, the trial court stated, “But I do
want to be certain that there is no finding that [Christy]
is unfit for custody.” [App. 46] The trial court noted
that there may have been conditions in the past “but not
in the recent past” that might be construed as
inconsistent with the presumption that the biological
parent will always act in the best interests of the child.
He concluded that “those things are not in the recent
past and I do not want any finding that she is unfit for
custody.” [App. 46]
The court subsequently entered a written order
that awarded respondents custody and visitation to
Christy. The court found Christy’s “lifestyle and
romantic involvement’s [sic] resulted in her neglect
and separation from the minor child.” [App. 34] The
court also found “any actions in the past but not recent
past by [Christy] that may have been construed as
inconsistent with the presumption that the biological
parent will act always in the best interests of the child
do not render [her] unfit to have a relationship with,
but not custody of, her daughter.” [App. 34] The court
concluded respondents “are fit and proper persons to
be granted the care, custody and control” of Amber
and the “best interests of the child” would be served by
granting them custody. [App. 34] The court further
concluded Christy “is unfit to have custody of, but is a
fit and proper person to be granted visitation with, the
minor child.” [App. 34]
Christy appealed to the North Carolina Court of
Appeals. In a unanimous decision, the court reversed.
The court concluded the trial court improperly utilized
“a best interests of the child” standard to resolve the
custody dispute because Christy “had not lost her
constitutionally protected right to retain custody of her
child.” [App. 20] Significantly, the court of appeals
4
recognized (1) the constitutional right of a natural
parent to raise her child prevents application of the
“best interests of the child” test in determining a
custody dispute with a third party and (2) no evidence
or findings of fact supported the conclusion that
Christy had engaged in behavior that justified
stripping her of her constitutional rights as a parent.
Respondents sought and obtained review in the
Supreme Court of North Carolina. Explaining that this
Court has never held that a parent's constitutional right
to the custody of her child was absolute [App. 8],3 the
lower court determined it was appropriate to consider
3 For this proposition, the state supreme court relied on Lehr
v. Robertson, 463 U.S. 248 (1983). The use of Lehr is curious,
especially in light of more numerous and. analogous precedents
endorsing the constitutionally protected right of a natural parent to
the care and custody of her child, including Troxel, Santosky, and
Stanley. In Lehr, a father with no significant custodial, personal, or
financial relationship to a child he fathered out of wedlock
challenged the child’s adoption when she was two years old by the
child’s mother and her husband, whom she married eight months
after the child’s birth. Id. at 251-52. This Court took especial note of
the absence of any effort by the father to be any part of the child’s
life in the two years since her birth, as “he did not seek to establish a
legal tie until after she was two years old.” Id. at 262. Having made
these determinations, this Court concluded that since the father
failed to “grasp the opportunity” to establish a relationship with or
“accept some measure of responsibility for” the child, “the Federal
Constitution will not automatically compel a State to listen to his
opinion of where the child’s best interests lie.” Id. at 262. A fair
reading of Lehr reveals it hardly stands for an overarching limitation
on a parent's constitutional right to the custody of her child.
Indeed, its facts are so diametrically unlike those in this case that is
can hardly be considered authoritative. The lower court reliance on
it alone for its federal constitutional guidance, to the exclusion of far
more similar situations in Troxel, Santosky, and Stanley, is a startling
demonstration of the inadequacy and incorrectness of the decision
below and the need for certiorari review.
5
past conduct that no longer existed, and which never
had an impact (negative or otherwise) on the child, as a
factor in the custody analysis. [App. 13] It therefore
reversed the court of appeals and reinstated the trial
court's order.
Christy sought rehearing, arguing that the state
supreme court had misapplied the appropriate
constitutional inquiry and erred in holding that past
conduct, which was no longer occurring, could be used
to award custody to a non-parent, third party as
opposed to the natural parent.4 Rehearing was denied
on 31 January 2002. [App. 47-48] The lower court's
judgment was entered on 7 January 2002. [App. 49-50]
. In North Carolina, a petition to rehear an appellate
decision can only be filed and obtained if it is supported by
certificates from two attorney who have been members of the bar
for at least five years who are neither counsel to the parties nor
have a personal interest in the proceedings. N.C. R. App. 31(a).
They “must have carefully examined the appeal and the
authorities cited in the decision [and] consider the decision in
error on points specifically and concisely identified.” Id. Christy
supported her petition for rehearing in the state supreme court
with affidavits from two of the most recognized and respected
professors of family law in North Carolina: Suzanne Reynolds of
Wake Forest Law School (the current author of Lee on North
Carolina Family Law, the seminal treatise on family law in the
state) and Jean Cary of Campbell Law School (who also teaches
family law at Duke Law School). Both Professor Reynolds and
Professor Cary found the state supreme court decision erroneous
in its use of the “best interests of the child” standard in a custody
dispute between a mother and a non-parent and in its
consideration of the mother’s past behavior which was no longer
occurring as a determinative factor. Their views strongly signal
the need for review by this Court.
6
rn
B. FACTUAL BACKGROUND.
Christy [then Holland] Seitz met Stacey Speagle
in high school in 1990-91, and they began dating. After
high school, Stacey left for basic training, returned
about four months later, and began staying with
Christy at her apartment in Hickory. Christy and
Stacey were 18.
Although respondents, _Stacey’s parents,
disapproved of the intimate relationship, they
preterred that Christy and Stacey stay with them rather
than at an apartment. In December 1992, Christy and
Stacey became engaged and Christy became pregnant
with Stacey’s child. Respondents were angry about the
pregnancy and wanted Christy to have an abortion.
Christy, however, wanted to keep the child: So she
continued the pregnancy, moved from respondents’
house, and lived with her mother. Several months
later, Christy returned to live with respondents and
worked at an office supply store until shortly before
the child’s birth.
Amber was born on 3 September 1994. Christy
stayed with her own mother for several weeks, and
then Christy and Stacey lived with respondents.
Christy stayed home and took care of Amber. After
numerous disagreements with respondents over how
to raise Amber, Christy left with her mother, and
eventually moved into an apartment. Christy and
Stacey reconciled until August when Christy and
Stacey again separated. Christy earned her GED and
moved to Raleigh. Christy stayed in Raleigh until
March 1995, when she returned to Hickory so Amber
could be closer to her father.
a
/
While living in Raleigh, Christy worked as a
topless dancer. When Christy worked in Raleigh,
either Allison Barber Griffin or Christy’s older sister,
Brandi, looked after Amber. Allison, who lived with
Christy and Amber in Raleigh and Hickory, testified
for respondents that Christy was a good mother.
Allison had no misgivings about Christy watching
Alexis, Allison’s young daughter.
No evidence suggested Amber was not well
looked after during this time. In fact, when asked by
respondents’ about activities with Amber, Allison
replied they took their children to the park, worked on
crafts, and went on trips to the mountains.
From November 1994 until December 1995,
Christy held similar jobs dancing at various clubs.
Several witnesses, including Heather Brown and Allison
Griffin, explained Christy danced because she could
make good money and still have time to be with Amber.
Stacy Speagle had no objection to Christy’s dancing.
In March 1995, Christy moved back to Hickory
because the cost of living was lower, and she and
Amber could be closer to Stacey. Christy lived with
Allison Griffin and Allison’s daughter. Allison said
Christy had no male visitors who spent the night
during the time they lived in Raleigh or Hickory.
. Christy earned enough to support herself and
Amber and had time during the day to spend time
with Amber. Christy and Amber would practice the
alphabet, do flash cards, and watch shows such as
Sesame Street. When Christy worked in Hickory,
Amber would spend the night either with her
grandparents or with Roberta Jewell, a child-care -
provider with experience running day care facilities.
Sometimes Amber would spend the entire night, and
sometimes Christy would pick her up early in the
8
oem:
morning after work. Jewell testified Christy appeared
to love Amber, and that Amber was always clean, well
fed, and well dressed. Nothing indicated Christy did
not take good care of Amber.
In early September 1995, Christy began to move
to the Carolina Beach area, where her mother and step-
father lived. However, Stacey filed suit seeking
custody. In October 1995, a judge awarded Stacey
custody approximately half of the time, with Christy
and Stacey to alternate custody every two weeks. At
this point Christy abandoned her plan to move and
returned to Hickory. During times when Christy had
custody of Amber, she would take Amber to visit with
her mother at the beach.
During one of these trips, Christy met Brvce
Delon, a marine stationed at Camp Lejeune. They
became friends, and the trial court found they engaged
in sex at the marine barracks. Amber was never
present; in fact, Christy only visited the barracks when
Stacey had custody of Amber.
In November 1995, Christy’s sister Brandi
moved to Texas. In December 1995, Christy and Delon
went to Texas to visit Brandi. During this trip, Amber
was in Hickory with Stacey. In Texas, Christy danced
one evening at a club; that was the last time she
danced. She returned from Texas without Delon,
began work in the hat-check area of a club, and made
plans to earn her living through child care.
Jimmy Morris, a private investigator hired by
respondents, saw Christy working at the hat-check area
of a club in early January 1996. Christy told him she
and Stacey were getting along, she felt better about
Stacey having access to Amber, and she was thinking
of finding work with children. Morris never saw any
sign that Christy mistreated Amber.
9
Derene Speagle testified that when Christy
brought Amber to them she was clean. Respondents
offered no evidence Christy mistreated Amber in any
way.
During January 1996, Delon and some friends
visited Christy. Delon lured Corporal Robert Lankford
to Hickory with the idea that Lankford could meet
Christy’s friend, Heather. In fact, this was not true,
and Lankford saw Heather for about five minutes and
then spent time in Christy's residence. During this
time, Christy and Bryce went into the kitchen to talk
and smoke, and Lankford watched videos with Amber.
In addition, Lankford, Delon, Christy and Amber went
Out on various errands. They took Amber sledding in
the back yard. Amber was not mistreated in any way.
Lankford said he and Delon spent the night at a hotel.
In addition, Lankford thought Christy was not happy
Delon had come and did not seem to like him.
Lankford did not see affection between them.
Sometime after this visit, Christy and Stacey reconciled,
and Stacey moved back into Christy’s apartment.
After Stacey and Christy reconciled, Delon again
came to visit, accompanied by a Marine named Varney.
Heather Brown came to visit Christy during at this
time, and saw Delon and Varney at the residence.
When Heather opened the door to a bathroom, outside
the presence of Christy, Delon made a comment about
harming Stacey. Christy did not hear the comment.
When Christy asked Heather what Delon said, Heather
repeated the comment, and then said that Delon was
just being silly. Heather also claimed that while the
custody action between Christy and Stacey was
pending, Christy said Stacey would be dead by
Christmas and that she had set it up. Heather thought
Christy was joking and did not take the comment
10
seriously. Heather did not recall any further
discussion during Delon’s visit in January 1996,
although she was at Christy's apartment for two hours.
Like Christy, Heather supported herself by dancing at
topless clubs, and it did not interfere with her ability to
be a good mother. Heather said Christy was a good
mother to Amber. Amber was clean and well fed.
On 29 January 1996, Delon drove to Hickory,
shot and killed Stacey Speagle, and then shot and
killed himself. Delon had told several people
he wanted to hurt Stacey, but they did not believe him
or take him seriously because of his penchant for
lying.
Following Stacey’s murder and Delon’s suicide,
Christy was arrested and charged with having
arranged the murder. Christy was held in jail and
respondents obtained an ex parte emergency order the
day after her arrest granting them custody of Amber.
On 27 March 1996, Christy was released on bond and
immediately sought custody of her daughter, which
was denied pending resolution of the criminal charge.
Christy moved to Dallas and lived with her
sister, Brandi, pending the trial. Through her sister,
Christy met Eric Seitz, a Dallas businessman who was
involved in developing shopping centers. Seitz had
assisted Brandi in bailing Christy out of jail, and she
eventually worked as his secretary. They began dating
and became engaged prior to her trial.
From the time Christy was arrested through her
trial, she consistently attempted to maintain contact
with her daughter. Denied custody by the court, she
nonetheless called to speak to Amber. Respondents,
however, refused to allow Christy to talk to Amber.
Christy sent numerous letters to Amber, which
respondents would not read to her. Christy sent
11
Amber presents. Christy also sent approximately
$5,000.00 in child support, much of which respondents
did not accept.
After a jury trial, at which she testified, Christy
was acquitted of participating in Stacey’s murder. On
19 August 1997, the court granted Christy visitation
rights with her daughter, which visits were to be
accomplished by having Amber delivered and picked
up from a neutral exchange person. For the first time
in almost twenty months, Christy was allowed to have
contact with her own daughter. Although exercising
her visitation required extensive travel, Christy visited
Amber on every occasion she could, until her ability to
travel was restricted by a pregnancy with her second
child. The only visit Christy missed was caused when
the respondents refused to deliver Amber to the
neutral exchange person.
Christy married Eric Seitz in October 1997. They
got married in North Carolina so that Amber could
participate in the wedding. The every-second-weekend
visits required Christy and her husband to come North
Carolina and find a place to stay. Christy arranged to
stay in the home of Barbara Andrews. Andrews
described Christy as a loving mother and a very loving
wife. Andrews described the activities she saw when
Christy and her husband would visit with Amber. They
played and hugged, and interacted in a loving fashion.
After this visitation began, Christy and Eric
contacted a psychologist about issues that would arise
in reunifying with a child after an extended separation.
In addition, Christy and Eric enrolled in a parenting
class called Blended Families.
Respondents consulted with a psychologist after
the visits began between Amber and Christy. This
psychologist worked with Amber and respondents to
12
reduce the stress from these visits. He instructed
Derene Speagle not to question Amber about her visits
with Christy, but acknowledged a tape she made
ignoring this advice. She was recorded telling Amber
the court made her send Amber to Christy, statements
the expert would not encourage a care taker to make.
Another clinical psychologist with whom Christy
had consulted since June 1996 offered some insight into
why Christy had made some poor life choices when she
was younger. In her expert opinion, Christy had
improved in her decision-making and would not return
to the lifestyle she had before Stacey’s death.
Christy testified about her home in Texas. Their
neighborhood has a playground, a club house, and
other children. An accountant testified Seitz had the
financial resources to support a family.
Manner In Which The Federal Constitutional Issue
Was Raised And Decided Below
Petitioner, Christy Seitz, sought to regain custody
of her daughter from respondents, which she lost,
through no fault of her own, upon her arrest for a crime
for which she was later acquitted. In the ensuing
custody trial, Christy presented substantial evidence of
her fitness and argued her constitutionally protected
status as Amber's mother created a presumption in her
favor and required a finding that she was unfit by
something more than a mere preponderance of the
evidence. To the contrary, the trial court used a “best
interests of the child” analysis, evaluating the evidence
through a preponderance of the evidence standard, and
awarded custody to respondents, the paternal
grandparents, without affording Christy her
constitutionally protected status as Amber's mother
13
because it did so without finding Christy was not a fit
parent. Indeed, it found she was a fit parent. [App. 46]
The North Carolina Court of Appeals reversed, holding
a parent's constitutional right to custody of a child
precludes the use of a “best interests of the child”
analysis unless evidence shows the parent is unfit
because she endangers the health or safety of her child.
[App. 18-19, relying on Wisconsin v. Yoder, 406 U.S. 205,
233-34 (1972)] That court noted no evidence or findings
of fact supported a conclusion that Christy ever engaged
_ in any behavior which “had any negative impact on”
Amber, resulted in Amber’s neglect or abandonment, or
even “had a substantial risk of causing some harm to
her.” [App. 20] The Supreme Court of North Carolina
reversed this decision, finding the constitutionally
protected right of a parent is not absolute [App. 8,
relying on Lehr v. Robertson, 463 U.S. 248 (1983)] and
does not preclude the use of a “best interests of the
child” analysis, which need only be proved by a
preponderance of the evidence.> [App. 13] Whether
Christy’s due process right to the care, custody, and
nurturing of Amber gave her a presumptive right to
. Curiously, no court below considered this Court's most
recent explanation and analysis of a parent's constitutional right to
the care, custody, and nurturing of her child, especially vis-a-vis a
non-parent, third-party, in Troxel v. Granville, 530 U.S. 57, 66-72
(2000)(plurality opinion)(holding parent has constitutionally
protected interest in care, custody, and control of child that state
can neither supply nor hinder absent evidence parent did not
adequately care for child). Indeed, given the implications Troxel
has for this situation and the lower court's apparent disregard of
its impact, this Court should remand this matter for
reconsideration in light of Troxel. Mason v. City of Biloxi, 385 U.S.
370 (1966)(summarily reversing in light of earlier decision);
Torrance v. Callenius, 369 U.S. 658 (1962)(remanding for
consideration in light of new decision).
14
custody over the non-parent respondents that could
only be overcome through a showing, by at least clear
and convincing evidence, that Christy was unfit was
raised and decided on the merits below.
REASONS WHY CERTIORARI
SHOULD BE GRANTED
THE COURT BELOW VIOLATED A MOTHER’S
DUE PROCESS RIGHT TO THE CUSTODY OF
HER DAUGHTER WHEN IT USED A “BEST
INTERESTS OF THE CHILD” ANALYSIS TO
DENY HER CUSTODY IN FAVOR OF A THIRD
PARTY BY FINDING HER UNFIT BASED SOLELY
ON PAST, DISTANT CONDUCT FOUND ONLY
BY A PREPONDERANCE OF THE EVIDENCE.
The decision below is wholly at odds with the
consistent jurisprudence of this Court endorsing the
constitutionally protected right of a mother to the
custody of her daughter that is superior to a non-
parent, third party, like respondents, where the
mother has not been legitimately determined unfit to
raise her daughter. The state court of appeals
cogently observed, “there are no findings of fact or
any evidence in the record [petitioner's] conduct had
any negative impact on [the child] or had a substantial
risk of causing some harm to her.” [App. 20] “The
liberty interest . . . of parents in the care, custody, and
control of their children is perhaps the oldest of the
fundamental liberty interests recognized by this
Court.” Troxel v. Granville, 530 U.S. 57, 65 (2000). This
Court had earlier reaffirmed its historical recognition
of a natural parent’s fundamental liberty interest in
the custody of her child even when she has not been a
15
model parent or may have lost temporary custody of
her child. Santosky v. Kramer, 455 U.S. 745, 753 (1982).
Santosky explained that a parent is a least entitled to a
clear and convincing evidence standard of proof
before a child can be removed from her custody in
favor of a third person. Id. The court below failed to
heed these teachings. It did not accord Christy Seitz
her constitutionally protected liberty interest in the
custody of her child, Amber, particularly in a dispute
with respondents, who were non-parent, third parties.
By employing the “best interests of the child”
analysis, the court below reduced a natural parent to
same status as a non-parent, third party. This Court’s
jurisprudence, culminating most recently in Troxel,
does not permit this result. Not surprisingly, the
decision below is at odds with the majority of the
highest courts in other states on the question.® See,
e.g., In re Parenting of J.N.P., 305 Mont. 351, 27 P.3d 953
(2001)(standard requires showing sufficient to
terminate parental rights); In re Guardianship of L.L.,
745 N.E.2d 222 (Ind. App. 2001)(must show “present
‘ The lower court also allowed the custody determination to
be made only by a preponderance of the evidence standard. [App.
13] When the dispute is between a natural parent and a non-
parent, third party, this lower threshold of proof is inconsistent
with the parent's constitutional right to custody. Santosky, 455
U.S. at 753 (requiring proof by clear and convincing evidence
before denying natural parent custody in favor of third person).
The lower court's use of this burden of proof is also contrary to the
majority of the highest courts in other states on this question. See,
e.g. In re Guardianship of LL, 745 N.E.2d 222 (Ind. App.
2001)(requiring proof by “clear and cogent” evidence); Greer v.
Alexander, 248 Mich. App. 259, 639 N.W.2d 39 (2001)(requiring
clear and convincing evidence); Davis v. Collinsworth, 771 S.W.2d
329 (Ky. 1989)(requiring clear and convincing evidence in reliance
on Santosky).
16
unfitness” or “past abandonment”); Hamers v.
Guttormson, 610 N.E.3d 758 (N.D. 2000)(only go to
“best interests” analysis in “exceptional circumstances
like voluntary abandonment); In re Adoption of a
Female Child, 896 S.W.2d 546 (Tenn. 1995)(only use
“best interests” standard if evidence of substantial
harm to child). For these reasons, certiorari is
appropriate to address this important constitutional
question.
A. Due Process Protected Christy Seitz’s
Right to the Custody of Her Daughter,
Which the Courts Below Denied.
There can be no serious dispute that Christy
Seitz, as a natural parent, enjoys a constitutionally
protected right to the custody of her child, Amber. The
courts must carefully protect parental rights, not
merely as a matter of legislative grace, but as a matter
of constitutional law. Stanley, 405 U.S. at 651. As
Stanley explained, the integrity of the family unit is
protected by due process, equal protection, and the
ninth amendment. Id. (citations omitted). Most
recently, this Court decided a visitation dispute
between a child’s natural mother and the paternal
grandparents, which provided important guidance that
the lower court ignored. In Troxel, the paternal
grandparents sought to obtain more frequent visitation
with the child than the child’s mother wished to offer
them. 530 U.S. at 60-61. The lower court had declared
a state visitation statute unconstitutional because it
permitted the state to infringe-upon the natural parents
right to raise her child without a threshold showing of
harm and permitted judicial overriding of parental
decisions regarding visitation merely because a trial
17
court felt a different decision better would serve the
child’s best interest. Id. at 63. This Court affirmed the
reversal of the order granting the grandparents
visitation that exceeded what the child’s mother had
offered. “In light of . . . extensive precedent, it cannot
now be doubted that the Due Process Clause of the
Fourteenth Amendment protects the fundamental
rights of parents to make decisions concerning the care,
custody, and control of their children.” Id. at 66.
(plurality opinion). In reaching this conclusion, this
Court described the state visitation statute at issue as
“breathtakingly broad” because it gave a parent's
decision regarding appropriate visitation for her child
no deference and permitted “a court [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
interests.” Id. at 67. The statute violated the mother’s
fundamental right to make decisions regarding her
child’s up bringing.
Importantly, Troxel recognized that there is a
presumption that a fit parent acts in the best interests
of her child. Id. at 68. “[O]ur constitutional system
long ago rejected any notion that a child is the merely
creature of the State and, on the contrary, asserted that
parents generally have the right coupled with the high
duty, to recognize and prepare [their children] for
additional obligations. ... The law’s concept of the
family rests on a presumption that parents possess
what a child lacks in maturity, experience, and capacity
for judgment required for making life’s difficult
decision. More important, historically it has been
recognized that natural bonds of affection lead parents
to act in the best interests of their children.” Parham v.
18
a ii a
J.R., 442 U.S. 584, 602 (1979). As Troxel cogently
concluded, “so long as a parent adequately cares for his
or her children (i.e. is fit), there would normally be 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 children.” Troxel, 530 US. at 69.
The lower court simply did not afford Christy this
constitutional protection.
In many ways, the decision below represents a
judicial interference with parent decision-making just
as “breathtakingly broad” as the legislative interference
in Troxel. Here, a mother sought to regain custody,
which she had lost through no fault of her own (again,
quite unlike the situation in Lehr, where the
complaining parent had taken nary a single step to
involve himself in the two-year old child’s life), from a
non-parent, third party. The trial judge denied her
request, as in Troxel, “based solely on the judge’s
determination of the child’s best interests.” He did so
without any finding or evidence that the mother
neglected or did not adequately care for the child. And
the state supreme court affirmed this result despite a
unanimous decision of the intermediate appellate court
that the mother did nothing to lose her constitutionally
protected right to retain custody of her child and that
this principle prevented the application of the “best
interests of the child” test in a dispute between a parent
and a third party. [App. 18-20] In essence, North
Carolina does by judicial fiat what this Court prohibits
by legislative decree.
A fair reading of the opinions below leads to the
inescapable conclusion that the trial court denie*
Christy custody of Amber, and the court below agreed
with that determination, almost exclusively because f
19
a disapproval of Christy’s past conduct, none of which
had any effect on her child. However one may regard
a mother’s decision to work as a topless dancer and
engage in romantic and perhaps sexual activity with
several men (all outside the child’s presence and none
of which left the child abandoned, not cared for. or
neglected), this past conduct does not justify denying
the mother custody of the child in favor of a non-
parent, third party. The intermediate appellate court
specifically noted there was no evidence or findings of
fact that would support a conclusion that Christy
engaged in behavior which would justify stripping her
of her right as a parent. [App. 18] There was no proof
Christy engaged in any behavior detrimental to Amber
or which had a substantial risk (or even any risk) of
causing some harm to her. [App. 20] Because of its
basic disapproval of some parts of Christy’s lifestyle
(all of which ended long before the custody trial and
which an expert testified would never resume), the trial
court imposed its own judgment of what was in
Amber’s “best interests” in awarding custody to
respondents. As this Court noted in Troxell, this
subjective approach through the use of “best interests
of the child” standard essentially placed a burden on
Christy, the mother, of disproving that custody for
respondents would be in the best interest of Amber.
This decisional framework failed to provide Christy
with the protection for her fundamental constitutional
right to the custody of Amber. 530 US. at 69. The
result here is simply inconsistent with Troxell and must
be reversed.
B. The Lower __Court’s Use of a
Preponderance of the Evidence Standard
Unconstitutionally Shifted the Burden of
Proof to the Natural Parent/Mother and
Away from a Third Party.
In this case, North Carolina announced, for the
first time, that a non-parent, third party need only show
by a preponderance of the evidence that it would be ina
child’s best interests for custody to reside elsewhere
than with the natural parent. [App. 13] In Santosky, this
Court held that such a low standard of proof by
preponderance of the evidence was unconstitutional in
determining a contest between a natural parent and the
state. 455 US. at 768-70. In doing so, this Court noted
that the overwhelming majority of the states required a
higher standard of proof then merely a preponderance
of the evidence in such situations. Id. at 749-50 & n.3.7
A parent has a fundamental, basic, and constitutionally
protected right to raise her own daughter and any third
person who attacks this custody and seeks to abrogate
this right, including paternal grandparents like
respondents, show the natural parent's unfitness by at
least clear and convincing evidence. Davis v.
Collinsworth, 771 S.W.2d 329, 330 (Ky. 1989)(relying on
Santosky and Stanley).
The vice in using a lower standard of proof by
preponderance of the evidence is it essentially shifts the
burden of proof to the natural parent and, in doing so,
ignores the constitutionally recognized presumption
that a natural parent acts in the best interest of her child.
: North Carolina was not included in the discussion or
listing. It appears the decision below is the first reported opinion
in North Carolina setting the burden of proof in a custody dispute
between a natural parent and a non-parent, third party.
21
See Heltzel v. Heltzel, 248 Mich. App. 1, 638 N.W.2d 123
(2001)(requiring mother to show her child’s “best
interests” required custody with the mother rather than
grandparents violated mother’s fundamental liberty
interest). If a natural parent’s decision becomes subject
to judicial review, Troxell acknowledges that her view
must be accorded some special weight. 530 U.S. at 70.
Neither the trial court nor the state supreme court
accorded Christy’s opinion any special weight. And
apparently both courts did so primarily, if not
exclusively, because of disagreements with her decision
to engage in lawful employment as a topless dancer and
to have romantic relationships with men to whom she
was not married. As Greer explained, the presumption
that it is always in the best interests of a child to be in
the custody of her natural parent remains a
presumption of the strongest order and must be
seriously considered and heavily weighted in favor of
the parent. 248 Mich. App. at 267, 639 N.W.2d at 43
(quoting Deel v. Deel, 113 Mich. App. 556, 562, 317
N.W.2d 685 (1982)).
In addition to Troxell, Stanley also recognized the
interest of a parent in the custody of her child that
“undeniably warrants deference, and absent a powerful
countervailing interest, protection.” 405 U.S. at 651.
This fundamental right is expressed through the well-
recognized presumption that the right of a natural
parent to the custody of her child is superior to any right
or interest claimed by a third-person. In re Adoption of
E.L., 315 Ill. App. 3d 137, 157, 733 N.E.2d 846, 862 (2000).
While the presumption is not absolute, it serves as one
of the more important factors used by a court in
deciding where custody should be. In order to retain
custody of a child over the superior right of a natural
parent, a third party must demonstrate good cause or
22
reason to overcome this presumption. Id. at 158, 733
N.E.2d at 862. The court below acted contrary to the
rule in the majority of states, based upon constitutional
underpinnings, “that when a parent initiates an action
to obtain custody, a nonparent seeking to retain custody
must bear the burden of overcoming the parent's
presumptively superior right to custody.” In re.
Guardianship of L.L., 745 N.E.2d 222, 227 (Ind. App.
2001). Evidence to rebut the presumption in favor of
custody in the natural parent must be clear and cogent.
Id. at 228; accord Overfield v. Collins, 199 W.Va. 27, 36, 483
S.E.2d 27, 36 (1997); Hendrickson v. Binkley, 316 N.E.2d
376, 381 (Ind. App. 1975). In re Guardianship is
particularly instructive and shows why the decision
below is at odds with the constitutional holdings of this
Court and the majority rule among the states. A child
had been placed in the guardianship of a third party
because the mother and her ex-husband were drug and
alcohol abusers and fought regularly. The mother
rehabilitated herself, both from her drug and alcohol
abuse and from her relationship with the former spouse
who fought with her. The conditions that led to the
guardianship “where no longer present when [the
mother] filed the current petition to terminate
guardianship.” The trial court left the guardianship in
place. This decision was reversed because the trial court
did not apply the appropriate presumption, similar to
the error in the case at bar. Furthermore, the trial court
also relied on past conduct that no longer existed to
deny custody to the parent in favor of a third party,
again like the courts below. This reliance was
misplaced. Reliance on past conduct is inappropriate in
light of Troxell. Rather, a third party must “prove [a
parent's] unfitness at the present time, not at some time
in the past.” Id. at 231.
23
Critically, none of the courts that reviewed this
matter - - the trial court, the court of appeals, or the
state supreme court - - found that Christy’s work as a
topless dancer or her romantic involvements with other
men existed at the time of the trial court’s custody
determination. Indeed, the uncontroverted evidence
demonstrated she was happily married and working as
a secretary in her husband’s real estate development
enterprise. Had the trial court imposed on respondents
the constitutionally required burden of proving
Christy’s unfitness by clear and convincing evidence,
they could not have met this burden and the trial court
could not have denied Christy custody of Amber.
Indeed, if it had done so, the decision could not stand.
North Carolina’s use of a preponderance of the
evidence standard in this situation, where a third party
seeks to retain custody of a child over the natural
parent, is unconstitutional. Santosky, 455 U.S. at 769-70.
It is far outside the mainstream of the rules used in
other jurisdictions. As the Michigan Court of Appeals
observed, due process does not permit a state “to
infringe on the fundamental right of parents to make
child rearing decisions simply because a state judge
believes a ‘better’ decision could be made.”
Accordingly, it is not sufficient in a competing custody
claim between a noncustodial natural parent and a
third party that the third party establish by clear and
convincing evidence that a marginal, though distinct,
benefit would be gained if the child were maintained
by him. Heltzel v. Heltzel, 248 Mich. App. 1, 28, 638
N.W.2d 123, 138-39 (2001). This Court should grant
certiorari to review this important constitutional issue.
24
atic Ba il rantcctnciiaisie abana
eR eS ei ee eRe .
ed No Evidence Showed Christy Seitz was
an Unfit Parent.
There was no evidence, much less clear and
convincing evidence, that Christy Seitz was not fit to
have custody of Amber. Troxell noted the importance of
this aspect “for there is a presumption that fit parents
act in the best interests of their children.” 530 U.S. at 68.
Justice O'Connor, writing for the plurality in Troxell,
went on to explain the basic notion of a fit parent. A
parent is fit if she “adequately cares for . . . her
children.” Jd. This Court’s recognition of fitness is
significant. Nothing in the record suggested Christy did
not adequately care for Amber. [App. 16] Rather, all of
the evidence showed Christy provided more than
adequate care for Amber. Allison Barber, who lived
with Christy and Amber in Raleigh and Hickory,
testified for respondents that Christy was a good
mother. Allison had no misgivings about Christy
watching her own young daughter. When asked by
respondents about activities with Amber, Allison
replied they took their children to the park, worked on
crafts, and went on trips to the mountains. When
Christy worked in Hickory, Amber would spend the
night either with her grandparents or with Roberta
Jewell, a child-care provider with experience running
day care facilities. Sometimes Amber would spend the
entire night, and sometimes Christy would pick her up
early in the morning after work. Jewell testified Christy
appeared to love Amber, and that Amber was always
clean, well fed, and well dressed. Nothing indicated
Christy did not take good care of Amber. Jimmy
Morris, a private investigator hired by respondents,
never saw any sign that Christy mistreated Amber.
Even Derene Speagle testified that when Christy
25
\
brought Amber to them she was clean. Respondents
offered no evidence Christy mistreated Amber in any
way.
Relying loosely on the relative fitness of a third
party vis-a-vis a natural parent carries a constitutionally
unacceptable risk that the resulting custody analysis will
impermissibly lower the burden a third party should
shoulder to obtain custody from a natural parent. See
Hamers v. Guttormson, 610 N.W.2d 758 (N.D.
2000)(unfitness must mean more than poor parenting
choices); In re S.B.L. 150 Vt. 294, 553 A.2d 1078
(1988)(due process requires showing natural parent
unfit in dispute with third party and “best interests”
standard is not appropriate). In a contest between a
parent and a non-parent, a parent cannot be deprived of
the custody of her child unless there has been a finding,
after notice required by due process, that she has caused
or a least created a risk of substantial harm to the child.
Only then may a court engage in a “best interests of the
child” evaluation in determining custody. In re Adoption
of a Female Child, 896 S.W.2d 546, 548 (Tenn. 1995).
Both the trial court’s convoluted musings at the
end of the custody trial, its less than clear order, and the
state supreme court decision lead to the inescapable
conclusion that Christy was denied custodv of Amber
almost exclusively because of a disapproval of Christy's
past conduct, none of which had any effect whatsoever
on Amber. However one may regard a mother’s work
as a topless dancer and romantic involvement with
several men (all outside the Amber’s presence and none
of which left her abandoned or neglected), it cannot
justify denying Christy custody of Amber in favor of the
non-parent, third party respondents. The intermediate
appellate court specifically noted there was no evidence
or findings of fact that would support a conclusion that
26
Christy engaged in behavior which would justify
stripping her of her right as a parent. [App. 18] There
was no proof Christy engaged in any behavior
detrimental to Amber or which had a substantial risk (or
even any risk) of causing some harm to her. [App. 20]
Because of a basic disapproval of some parts of Christy's
lifestyle (all of which ended long before the custody trial
and which an expert testified would never resume), the
trial judge imposed its own judgment of what was in
Amber's “best interests” in awarding custody to
respondents and the state supreme court simply
followed suit. As this Court noted in Troxell, this
subjective approach through the use of “best interests of
the child” standard essentially placed a burden on
Christy, the mother, of disproving that custody for
respondents would be in the best interest of Amber.
This decisional framework failed to provide Christy
with the protection for her fundamental constitutional
right to the custody of Amber. 530 U.S. at 69. The result
here is flatly outside acceptable constitutional
constraints.
It is clear the lower courts simply exercised their
judgment in determining whether Christy or
respondents would be better parents of Amber.
However, the constitutional strictures preclude this
discretionary determination. The lower courts were not
free simply to decide it would be in Amber's best
interest to be with respondents. Troxell makes this
abundantly clear. To the extent the lower courts did so
because of a disagreement with or disapproval of
Christy’s past conduct, which all the evidence showed
no longer continued, this discretionary determination in
utter disregard of Christy’s constitutionally protected
rights as Amber’s mother is simply indefensible. This
Court should grant certiorari.
27
CONCLUSION
For the reasons stated herein, Christy Lynette
Holland Seitz respectfully requests that the judgment
of the Supreme Court of North Carolina be summarily
reversed or vacated and remanded for reconsideration
in light of Troxell v. Granville, 530 U.S. 57 (2000). In the
alternative, she respectfully requests that a writ of
certiorari issue to review the decision below.
RESPECTFULLY submitted this the 8 day of
April 2002.
RUDOLF MAHER WIDENHOUSE
& FIALKO
*M. Gordon Widenhouse, Jr.
(NCSB 10107)
312 West Franklin Street
Chapel Hill, North Carolina 27516
Telephone: 919-967-4900
*Counsel of Record
28
TABLE OF CONTENTS
Appendix to Petition
Opinion
Supreme Court of North Carolina
entered December 18, 2001 0.......:.csscssecscscses App. 1
Opinion
North Carolina Court of Appeals
entered December 29, 2000........... cesses App. 15
Order and Judgment of
The Honorable William A. Creech
State Of North Carolina, Catawba County
General Court of Justice, District Court Division
Re: Custody, Visitation and Child Support
ENSUE GRICE TF, TIFF sets snsssssercsessncsansans App. 21
Excerpt of Transcript of Trail before
The Honorable William A. Creech
on September 4, 1998:
Oral Findings of Facts of
The Honorable William A. Creech............ App. 42
Opinion
Supreme Court of North Carolina
Re: Denying Petition for Rehearing
extered Jariary 7; 2002 ..cccccessssoresesrsacasesans App. 47
Judgment
Supreme Court of North Carolina
entered January 7, 2002.......:sc-ssssssssersssaooss App. 49
App. i
IN THE SUPREME COURT OF NORTH CAROLINA
No. 32PA01
FILED: 18 DECEMBER 2001
[Entered: December 18, 2001]
WILLIAM SPEAGLE, and wife, DERENE SPEAGLE
Vv.
CHRISTY LYNETTE HOLLAND SEITZ
On discretionary review pursuant to N.C.GS. §
7A-31 of a unanimous decision of the Court of Appeals,
141 N.C. App. 534, 541 S.E.2d 188 (2000), reversing an
order and judgment entered 5 April 1999 by Creech, J.,
in District Court, Catawba County. Heard in the
Supreme Court 11 September 2001.
Sigmon, Clark, Mackie, Hutton, Hanvey & Ferrell,
P.A., by Forrest A. Ferrell and Stephen L. Palmer; and Long,
Parker, Warren & Jones, P.A., by Robert B. Long, Jr., for
plaintiff-appellants.
Ruldolf Maher Widenhouse & Fialko, by Thomas K.
Maher, for defendant-appellee.
LAKE, Chief Justice.
The question presented for review in this case is
Whether the trial court was correct in determining
defendant lost her constitutionally protected status as a
parent and in applying the “best interests of the child”
analysis under the circumstances in this case. The
Court of Appeals reversed the trial court, holding there
was no evidence of: “conduct inconsistent” with
App. 1
defendant’s protected status at the time of trial or at
any time soon before trial, which would support
triggering of the “best interest” analysis. Speagle v.
Seitz, 141 N.C. App. 534, 537 n.1, 541 S.E.2d 188, 190 n.1
(2000).
On 1 March 2001, this Court allowed
defendant’s motion to dismiss plaintiffs’ appeal of a
constitutional question, but allowed plaintiffs’ petition
for discretionary review. For the reasons stated below,
we reverse the decision of the Court of Appeals and
direct that court to reinstate the trial court’s judgment
awarding custody of the child to plaintiffs.
On 3 September 1993, defendant, Christy
Lynette Hollane (now Christy Seitz), gave birth to a
daughter, Amber Ashton Holland, out of wedlock. The
biological father of the child was William Stacy
Speagle. Starting soon after the child’s birth, defendant
and the child often moved from one location to
another. Defendant and the minor child resided with
plaintiffs, William Speagle and Derene Speagle, and the
father from about 1 October 1993 until shortly after
Christmas in December 1993. Plaintiffs are the parents
of Stacy Speagle and the paternal grandparents of the
child.
Defendant was employed as a topless dancer at
various establishments in North Carolina frora 1993
through 1995. Defendant ‘was fired from one such
establishment in June 1995 in Hickory, North Carolina,
for violating its rules by ejaculating a male patron in
front of the audience.
During the early part of 1994, defendant and the
infant child resided with defendant’s mother and
stepfather. During this period, defendant denied that
Stacy Speagle was the biological father of the child.
App. 2
However, a paternity test confirmed he was the
biological father. Defendant and her daughter moved
to a townhouse in the Bethlehem community of
Alexander County, North Carolina, in January or
February 1994. Plaintiffs and the child’s father visited
the child at this location. Defendant and the child
moved to Raleigh in October 1994. In March 1995, they
moved back to Hickory, North Carolina. After her
return to Hickory in 1995, defendant danced at another
establishment in Hickory at various times throughout
the year. While defendant worked, she left her child in
the care of a woman previously warned by the
Catawba County Department of Social Services for
keeping too many children in her house. Defendant
occasionally picked the child up at 1:00 or 2:00 a.m.
from this residence.
Defendant and the father reconciled several
times after the child’s birth. After a period of
reconciliation in the summer of 1995, they soon
separated again. Defendant did not allow the father to
see his child after this separation. The father filed two
separate actions in Catawba County, seeking custody
and legitimation of the minor child. On 12 December
1995, the trial court entered a temporary custody order
providing joint custody to defendant and the father.
The custody case was set for trial commencing at the 21
February 1996 session of court.
In September 1995, defendant moved to
Carolina Beach, North Carolina, with the child in her
custody. From September 1995 until November 1995,
defendant worked part-time as a topless dancer in
Snead’s Ferry, North Carolina. During this period, she
had a relationship with Bryce Delon, a marine
stationed nearby at Camp Lejeune. On weekends,
App. 3
defendant and her sister, Brandy Holland, would
spend the night on the base with Delon _and his
roommate, Heath Mosely. On occasion, defendant
engaged in sexual intercourse with Delon, and her
sister engaged in sexual intercourse with Mosely
during these weekends.
Defendant had sole custody of the child from
the time of her birth until 12 December 1995, when the
trial court entered an order granting joint custody to
defendant and the father. During the times defendant
and the father were not reconciled and he had custody
of the minor child, both father and child resided with
plaintiffs.
In December 1995, defendant traveled with
Delon to Texas to meet his family. On 18 January 1996,
defendant and Stacy Speagle again reconciled and
began living together in defendant’s home in Hickory.
After this reconciliation, Delon visited defendant at her
residence in Hickory.
On 29 January 1996, Delon shot and killed Stacy
Speagle. Later that evening, Delon committed suicide.
On 30 January 1996, defendant was arrested and
charged with the first-degree murder of Speagle and
conspiracy to commit first-degree murder. On the day of
defendant's arrest, plaintiffs filed a complaint seeking
permanent custody of the child as well as an ex parte
order for temporary custody. The District Court,
Catawba County, immediately entered an emergency
order granting plaintiffs custody of the child. Defendant
remained in jail until 26 March 1996, when she was
released on bond. After being released on bond,
defendant moved to Dallas, Texas, and lived with her
sister, Brandy Holland. She later established her own
residence there and worked as an office receptionist.
App. 4
On 29 March 1996, defendant filed an answer to
plaintiffs’ complaint and counterclaimed for custody.
On 2 May 1996, the trial court denied defendant's
motion for temporary custody. The court allowed
plaintiffs’ motion to stay further proceedings either
until the completion of defendant's trial for Speagle’s
murder or the district attorney, the State Bureau of
Investigation and the Hickory Police Department
“decid[e] to share all information which plaintiffs’
counsel considers adequate to present the case of the
plaintiffs at a custody proceeding.” On 29 June 1997,
after a six-week trial, defendant was acquitted of all
charges relating to the murder of Speagle. In October
1997, defendant married Eric Seitz in Texas, and in
June 1998, she gave birth to a second child.
In the case sub judice, the trial court found as a
fact that defendant’s “lifestyle and romantic
involvements” resulted in her “neglect and separation
from the minor child” and concluded that defendant
was unfit to have custody of the child. The trial court
found as a fact and concluded as a matter of law that,
at the time of the hearing, it was in the best interests of
the child for custody to remain with plaintiffs.
Defendant was awarded visitation with the child.
The trial court further found defendant's
conduct to be inconsistent with her constitutionally
protected interest as set forth in Petersen v. Rogers, 337
N.C. 397, 445 S.E.2d 901 (1994). In Petersen, this Court
held that natural parents have a constitutionally
protected interest in the companionship, custody, care,
and control of their children. Absent a showing of
unfitness or neglect, this interest must prevail in a
custody dispute between a parent and a nonparent. Id.
at 403-04, 445 S.E.2d at 905.
App. 9
In addition, the trial court made several findings
of fact regarding plaintiffs and their relationship with
the minor child. The trial court found plaintiffs
presented ample testimony of their love for the child
and their ability to provide for her care and
upbringing. Plaintiffs had good character and
reputations, with a stable life in a comfortable, well-
kept home in Hickory, North Carolina. The child was
well adjusted; was enrolled in a nearby school; and had
a strong bond with plaintiff, Derene Speagle. Shortly
after the child began visitation with defendant,
plaintiffs sought professional assistance from a child
psychologist to assist the child with those visits. The
trial court found that since the child’s birth, plaintiffs
and the child had a close and loving relationship, the
continuation of which was necessary to protect the
child’s best interests and welfare.
Defendant appealed the trial court’s decision to
the Court of Appeals, contending there was insufficient
evidence to support the trial court's finding that
defendant lost her constitutionally protected right to
custody. The Court of Appeals agreed, and based on
Petersen, it reversed the trial court’s ruling and awarded
custody of the child to defendant. Speagle, 141 N.C.
App. at 537-38, 541 S.E.2d at 190. The Court of Appeals
held there existed “no evidence [d]efendant was
engaging in any ‘conduct inconsistent’ with her
protected status in August 1998, the date of the custody
trial, or any time soon before that trial.” /d. at 537 n.1,
5941 S.E.2d at 190 n1. The Court of Appeals thus
concluded that defendant did not lose _ her
constitutionally protected status. Id. at 537, 541 S.E.2d at
190. Therefore, the court reasoned that it was improper
for the trial court to apply the best interests analysis. Id.
App. 6
In the appeal to the Court of Appeals, plaintiffs
asserted a cross-assignment of error addressing the
trial court's failure to admit and consider evidence of
defendant's participation in the murder. This cross-
assignment was not addressed by the Court of
‘Appeals. In their petition for discretionary review by
this Court, plaintiffs included this issue that the Court
of Appeals failed to address. On 1 March 2001, this
Court allowed plaintiffs’ petition for discretionary
review with no limitations.
Plaintiffs now argue that the trial court's
findings of fact of defendant's neglect and separation
from the child and that defendant’s conduct was
inconsistent with her protected status were supported
by the evidence, and the trial court’s conclusions of
law based thereon were correct. Additionally,
plaintiffs assert that while the trial court reached the
correct result, the court erred in excluding evidence of
defendant’s participation in Speagle’s murder.
Plaintiffs contend that in light of defendant's overall
conduct and under these circumstances, the Court of
Appeals erred in concluding defendant did not lose
her constitutionally protected status. Specifically,
plaintiffs assert that the evidence of defendant's
involvement in Speagle’s murder was relevant and
should have been allowed and incorporated into the
trial court’s determination. Plaintiffs contend
defendant's participation in the murder of the child’s
father could be proven by a preponderance of the
evidence, and such proof, in and of itself, would
abrogate her constitutional right to custody. Plaintiffs
contend the murder evidence and trial court's
findings of fact regarding defendant’s conduct
App. 7
inconsistent with her protected status, based upon her
lifestyle, strongly support the trial court’s award of
custody to plaintiffs.
The United States Supreme Court has
recognized that protection of a parent's interest in the
custody of his or her children is not absolute. Lehr v.
Robertson, 463 U.S. 248, 77 L. Ed. 2d 614 (1983). This
principle is stated by this Court in Price v. Howard, 346
N.C. 68, 76, 484 S.E.2d 528, 533 (1997). Like the present
case, Price also involved a custody dispute between a
parent and a third party who was not the natural
parent. In Price, this Court set forth a test for
determining when a parent loses his or her protected
status and the “best interest of the child” analysis is
triggered, holding as follows:
A natural parent’s constitutionally
protected paramount interest in the
companionship, custody, care, and control
of his or her child is a counterpart of the
parental responsibilities the parent has
assumed and is based on a presumption
that he or she will act in the best interest of
the child. Lehr, 463 U.S. 248, 77 L. Ed. 2d
614; In re Hughes, 254 N.C. 434, 119 S.E.2d
189 [(1961)]. Therefore, the 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. If a natural
parent's conduct has not been inconsistent
with his or her constitutionally protected
status, application of the “best interest of
App. 8
the child” standard in a custody dispute
with a nonparent would offend the Due
Process Clause. However, conduct
inconsistent with the parent's protected
status, which need not rise to the statutory
level warranting termination of parental
rights, see N.C.GS. § 7A-289.32 (1995),
would result in application of the “best
interest of the child” test without
offending the Due Process Clause.
Unfitness, neglect, and abandonment
clearly constitute conduct inconsistent
with the protected status parents may
enjoy. Other types of conduct, which must
be viewed on a case-by-case basis, can also
rise to this level so as to be inconsistent
with the protected status of natural
parents. Where such conduct is properly
found by the trier of fact, based on
evidence in the record, custody should be
determined by the “best interest of the
child” test mandated by statute.
Price, 346 N.C. at 79, 484 S.E.2d at 534-35 (emphasis
added) (citations omitted); see also Adams v. Tessener,
354 N.C. 57, 61-62, 500 S.E.2d 499, 502 (2001). We
reaffirm the holding in Price.
As mentioned above, plaintiffs contend the trial
court erred in excluding relevant evidence of
defendant’s participation in the murder. Not
withstanding plaintiffs’ assignments of error and
arguments in this regard, the Court of Appeals did not
specifically address the relevancy of the murder
evidence.
App. 9
While we do not consider the evidence relating
to the murder to be essential to our determination -of
the instant case, in light of the circumstances here
presented, we elect to address the issue of the
relevancy of this type of evidence in custody
proceedings, as this was one of the main contentions of
the parties in both the trial court and the Court of
Appeals, and we consider this issue important in the
development of our law in custody proceedings.
In addition, we do not agree with the inference
contained in the Court of Appeals’ opinion that
custody proceedings, unlike termination of parental
rights proceedings, cannot or should not be concerned
with past circumstances or past actions and conduct of
a parent when determining custody as between parents
or between parents and nonparents. We conclude that
any past circumstance or conduct which could impact
either the present or the future of a child is relevant,
notwithstanding the fact that such circumstance or
conduct did not exist or was not being engaged in at
the time of the custody proceeding. In this regard, we
note that findings of fact of a-parent’s conduct
inconsistent with that parent’s protected status,
whether related to past or present conduct, do not in
and of themselves determine custody. A finding of
inconsistent conduct merely triggers the best interests
of the child analysis.
We now turn to whether the evidence of
defendant's participation in Speagle’s murder was
relevant and constituted “conduct inconsistent” with
her protected status. While the trial court did not
expressly state this evidence was not relevant, it is clear
from the record that the trial court did not consider this
evidence when determining custody. The court noted
App. 10
defendant had been tried and acquitted of all charges
in the Speagle murder and stated that evidence of
defendant's role in the murder had “nothing to do with
what is before this Court today.” We disagree with the
trial court's ruling regarding the relevancy and thus the
admissibility of this evidence.
We find the logic and authority set forth in a
prominent case from California to be compelling. The
. court there held: “As a matter of case law, as well as
common sense, the question of whether one parent has
actually murdered the other is about-as relevant as it is
possible to imagine in any case involving whether the
surviving parent should be allowed any form of child
custody.” Simpson v. Brown, 67 Cal. App. 4th 914, 925-
26, Z9 Cal. Rptr. 2d 389, 395 (1998). The relevance of
this type of evidence in child custody cases is clear, and
such evidence is paramount.
Other areas of North Carolina law find such
evidence highly relevant. For example, the “slayer”
statute, N.C.-GS. § 31A-4 (1999), prevents a murderer
from acquiring the testate or intestate property of a
decedent he willfully and unlawfully killed. Likewise,
the principle that a person may not benefit from his or
her own wrong prevents a parent from sharing in the
wrongful death proceeds in an action brought by the
child’s estate, based upon the parent's negligence.
Carver v. Carver, 310 N.C. 669, 675, 314 S.E.2d 739, 744
(1984); see 2 James B. McLaughlin, Jr. & Richard T.
Bowser, Wiggins: Wills and Administration of Estates in
North Carolina § 203 (4th ed. 2000). It would be
incongruous for evidence of a party’s participation in a
murder to be relevant in property and estate cases but
not be relevant in child custody cases where one parent
is accused of killing the other parent. |
App. 11
The trial court excluded testimony previously
given by Robert Varney in defendant's criminal
trial. That testimony tended to show that in December
1995, Bryce Delon approached Varney and asked him
to kill Speagle while Delon was on military leave.
Delon apparently wanted to kill Speagle because of
his custody battle with defendant. Varney also
testified in the murder trial that on 27 January 1996,
two days prior to the murder, he traveled with Delon
to Hickory to visit defendant at the home she was
sharing with Stacy Speagle. During the evening of 27
January 1996, a woman named Heather Brown came to
defendant's residence. According to Varney’s
testimony, Delon hid in the bathroom with a .45-caliber
pistol in hand until he realized it was Brown. Delon
then stated to Brown, “You almost got f---ing shot.”
Varney testified this incident occurred while the
child was in the residence. During the trip, Delon told
Varney that “he [Delon] was going to have Christy
[defendant] send him [Stacy Speagle] to a Food Lion
and he was going to pop him in the parking lot.”
Speagle was in fact murdered by Delon in a Food Lion
parking lot. Delon murdered Speagle with a .45-caliber
pistol. All of this evidence was excluded in the custody
trial.
The trial court did consider testimony by Brown
regarding a statement made by defendant concerning
the victim. Brown testified that in December 1995,
defendant stated to Brown that “Stacy Speagle would
be dead by Christmas and it was taken care of.”
Speagle was murdered by Delon on 29 January 1996,
one month after Christmas.
App. 12
ET ie Lia NTO IA ca tal hI aM eS ae So
The California Court of Appeals dealt with a
similar situation in Hightower v. Smith, 147 Cal. App. 2d
686, 306 P.2d 86 (1956). In that case, the mother’s
paramour was convicted of murdering the child’s
father. At the time of the murder, the child’s father
was married to the child’s mother. The mother was
indicted, tried and acquitted of the father’s murder.
The mother sought custody of her child over the child’s
paternal aunt. The trial court considered all evidence
and denied custody to the mother. Id. at-687, 306 P.2d
at 86. The California Court of Appeals affirmed the
trial court. Id. at 703, 306 P.2d at 98.
In this case, defendant was acquitted of all
criminal charges relating to the murder. The standard
of proof in a criminal trial is proof of guilt beyond a
reasonable doubt. However, the applicable standard of
proof in child custody cases is by a preponderance, or
greater weight, of the evidence. Jones v. All American
Life Ins. Co., 312 N.C. 725, 733, 325 S.E.2d 237, 241
(1985). Preponderance of the evidence is a lower
standard than proof beyond a reasonable doubt.
Although defendant was acquitted in the criminal trial,
evidence of her involvement in the murder of the
child’s father was highly relevant in the subsequent
custody case and could possibly have been proven
using the lower standard. Thus, the trial court should
have considered all relevant, admissible evidence
relating to defendant's role in Speagle’s murder.
Defendant argued Varney’s testimony was
inadmissible hearsay, regardless of relevancy.
Plaintiffs contended the evidence fell within the Rule
804(b)(1) hearsay exception as former testimony
admissible where the declarant at a later trial is
unavailable as a witness. The trial court did not find
App. 13
this evidence inadmissable as hearsay, and the Court of
Appeals did not address the issue. We decline to
address this issue as well because we conclude a new
trial is not required in this case.
In light of the evidence before and considered
by the trial court, we conclude the trial court was
correct in its finding of fact that defendant’s conduct
“resulted in her neglect and separation from the minor
child,” and in accord with our holding in Price, we
further conclude the trial court was correct in holding,
in effect, that defendant's actions were inconsistent
with her protected status, and in applying the “best
interest of the child” analysis, that defendant was unfit
to have custody. The decision of the Court of Appeals
is therefore reversed and that court is directed to
reinstate the order and judgment of the trial court.
REVERSED.
Justice EDMUNDS did not participate in the
consideration or decision of this case.
App. 14
NORTH CAROLINA COURT OF APPEALS
Filed: 29 December 2000
[Entered: December 29, 2000]
WILLIAM SPEAGLE, and wife
DERENE SPEAGLE,
Plaintiffs,
Vv. NO. COA99-1526
CHRISTY LYNETTE HOLLAND SEITZ,
Defendant.
Appeal by plaintiffs and defendant from order and
judgment filed 5 April 1999 by Judge William A.
Creech
in Catawba County District Court. Heard in the
Court of Appeals 17 October 2000.
Sigmon, Clark, Mackie, Hutton & Hanvey, P.A., by
Forrest A. Ferrell and Stephen L. Palmer, for plaintift-
appellants/appellees.
Rudolf Maher Widenhouse & Fialko, by Thomas K.
Maher and M. Gordon Widenhouse, for defendant-
appellant/ appellee.
App. 15
Eee BE Mere ncn ie SEN a Erma tb rere epee pease ae
GREENE, Judge.
Christy Lynette Holland Seitz (Defendant)
appeals a 5 April 1999 Order and Judgment (the Order)
awarding William Speagle and Derene Speagle
(collectively, Plaintiffs) custody of Defendant's
daughter, Amber Ashton Holland (Amber), with liberal
visitation to Defendant. Plaintiffs cross-appeal the
Order's denial of Plaintiffs' claim Defendant be ordered
to pay child support for Amber. In summary form, the
undisputed evidence shows Amber was born out of
wedlock on September 1993. Defendant is the mother of
the child and William Stacy Speagle (the father), now
deceased, was the biological father of the child.
Plaintiffs are the biological parents of the father and,
~ thus, the paternal grandparents of Amber. Defendant
had sole custody of Amber from birth until 24 October
1995, when a court order was entered granting joint
custody to Defendant and the father. During the time
the father had custody of Amber, the father and child
resided in Plaintiffs' home. On 29 January 1996, the
father was killed by Bryce Colby Delon, a recent
companion of Defendant. On 30 January 1996,
Defendant was arrested and charged with first-degree
murder and conspiracy to commit first-degree murder
of the father. On that same day, Plaintiffs filed an action
seeking custody of Amber, and an Emergency Order
was immediately entered granting Amber's custody to
Plaintiffs. Defendant remained in jail until 26 March
1996, after which she was released on bond, moved to
Dallas, Texas, and became employed as an office
receptionist. On 29 March 1996, Defendant filed an
answer to Plaintiffs' complaint and counterclaimed for
Amber's custody. On 29 June 1997, Defendant was
App. 16
acquitted of all criminal charges arising from the father's
death. On 19 August 1997, the trial court entered a
temporary order maintaining Amber's custody with
Plaintiffs and granting Defendant certain visitation
privileges. With few exceptions, Defendant exercised
her visitation privileges consistent with the 19 August
1997 order. Defendant was married to Robert Eric Seitz
of Texas on 4 October 1997 and gave birth to his son on
15 June 1998. Defendant and her husband presently live
in Texas. The evidence further shows Plaintiffs are of
good character and reputation and have a stable home
in Hickory, North Carolina. Amber is well adjusted and
is currently enrolled in the Catawba County schools.
There is a strong bond between Amber and Plaintiffs.
Defendant, between Amber's birth and her arrest in
1996, was regularly employed as a topless dancer at
various clubs and, on occasion, had sexual relations
with different men. There is no evidence Defendant ever
engaged in topless dancing or sexual relations in the
presence of Amber. The triai court entered findings of
fact consistent with this undisputed evidence and
further found in part:
98... . Defendant's lifestyle and romantic
involvement[]s resulted in her neglect
and separation from the minor child.
39... . [T]hat any actions in the past but
not recent past by .. . Defendant that may
have been construed as inconsistent with
the presumption that the biological
parent will act always in the best interests
of the child do not render . . . Defendant
unfit to have a relationship with, but not
custody of, her daughter.
App. 17
The trial court then concluded, in part: “that at
this time the best interests of the child would be
served [by] granting custody to... . Plaintiffs” and
“Defendant is unfit to have custody of, but is a fit and
proper person to be granted visitation with, the minor
child.”
The dispositive issue is whether the findings of
fact and conclusions of law in this case justify the trial
court's application of the best interests standard to
adjudicate the custody dispute between a natural
parent and the grandparents. In any child custody
dispute between the parents and third parties,
including grandparents, the parents have
aconstitutionally protected interest in the
companionship, custody, care, and control of their
children. Price v. Howard, 346 N.C. 68, 73, 484 S.E.2d
528, 530 (1997). The interest of the parents, therefore,
prevails against the interest of third parties and
precludes the application of a _ best interests
standard, in resolving child custody disputes, unless
the parents have engaged in some “conduct
inconsistent with [their] protected status.” Id. at 79,
484 S.E.2d at 534. This conduct includes, but is not
limited to: neglect of the children; abandonment of the
children; and, in some circumstances, the voluntary
surrender of custody of the children. Id. Whether the
conduct constitutes “conduct inconsistent” with the
parents' protected status presents a question of law
and, thus, is reviewable de novo, Raynor v. Odom, 124
N.C. App. 724, 731, 478 S.E.2d 655, 659 (1996); see In re
Helms, 127 N.C. App. 505, 510, 491 S.E.2d 672, 675
(1997) (any determination requiring the “exercise of
judgment” is most properly classified a conclusion of
App. 18
law), and “need not rise” to that conduct necessary to
terminate parental rights, Price, 346 N.C. at 79, 484
S.E.2d at 534. The parental conduct must, however,
in order to give rise to a best interests inquiry, have
some negative impact on the child or constitute a
substantial risk of such impact. See Wisconsin v. Yoder,
406 U.S. 205, 233-34, 32 L. Ed. 2d 15, 35 (1972) (parents'
constitutional right to rear their children can be
suspended only when “it appears that parental
decisions will jeopardize the health or safety of the
child”); cf. Browning v. Helff, 136 N.C. App. 420, 424,
924 S.E.2d 95, 98 (2000)(modification of child custody
order permissible only upon showing of a change
in circumstances “affecting the welfare of the
child”); In re Safriet, 112 N.C. App. 747, 752, 436 S.E.2d
898, 901-02 (1993) (neglect of child, within meaning
of Juvenile Code, occurs only upon showing of lack
of proper care accompanied with a showing that
the lack of care resulted in “some physical, mental,
Or emotional impairment of the juvenile”);
In re McCraw Children, 3 N.C. App. 390, 395, 165 S.E.2d
1, 5 (1969) (adulterous conduct of parent does not
per se render that parent unfit to have custody). In
this case, the trial court clearly utilized a best interests
inquiry. It concluded it was in the “best interests
of the child” to grant custody to Plaintiffs, the
child's grandparents. This was_ error. Even
assuming Defendant's conduct between 3
September 1993 (Amber's birth) and 30 January
1996. (Defendant's arrest) is “inconsistent” with her
App. 19
protected status,! there are no findings of fact or any
evidence in the record this conduct had any negative
impact on Amber or had a substantial risk of causing
some harm to her. Accordingly, it was improper for the
trial court to utilize the best interests standard to
resolve this custody dispute, as Defendant has not lost
her constitutionally protected right to retain custody of
her child. The Order of the trial court must, therefore,
be reversed. It, consequently, is unnecessary for us to
address Plaintiffs' appeal or any other assignments of
error.
Reversed.
Judges MARTIN and EDMUNDS concur.
t Although the “conduct inconsistent” with the parents’ protected
constitutional right is not to be judged solely by the termination statutes,
Price, 346 N.C. at 79, 484 S.E.2d at 534, the law with regard to termination
of parental rights can, nonetheless, be instructive. That law holds that
termination of parental rights cannot be based on past circumstances,
which no longer exist, but must be based on grounds present at the time
of the termination hearing. In re Young, 346 N.C. 244, 248, 485 S.E.2d 612,
615 (1997). In this case, even assuming Defendant's topless dancing or
sexual relations constitute “conduct inconsistent” with her protected
parental status, within the meaning of Price, there is no evidence this
conduct extended beyond 26 March 1996. Thus, there is no evidence
Defendant was engaging in any “conduct inconsistent” with her
protected status in August 1998, the date of the custody trial, or at any
time soon before that trial. Furthermore, although Defendant was forced
to leave her child when she was arrested and placed in custody, there is
no evidence Defendant intended for this separation to be permanent and
indeed Defendant sought to regain custody upon her release from jail. See
Price, 346 N.C. at 83, 484 S.E.2d at 537 (parents' grant of temporary
custody to another does not necessarily result in loss of protected status).
App. 20
STATE OF NORTH CAROLINA
CATAWBA COUNTY
IN THE GENERAL COURT OF JUSTICE
DISTRICT COURT DIVISION
FILE NUMBER: 96CVD234
WILLIAM SPEAGLE, and wife
DERENE SPEAGLE
PLAINTIFFS, .
-VS-
CHRISTY LYNETTE HOLLAND SEITZ
DEFENDANT,
ORDER AND JUDGMENT OF CUSTODY,
VISITATION AND CHILD SUPPORT
[Entered: March 19, 1999]
THIS CAUSE coming on to be heard and being
heard before the undersigned William A. Creech,
District Court Judge presiding at a Special Term of
District Court, Civil Division, Domestic Relations of the
General Court of Justice for Judicial District 25-B in
Newton, Catawba County, North Carolina
commencing on August 11, 1998 and ending on
September 4, 1998. Plaintiffs were represented by J.
Richardson Rudisill, Jr. Of Hickory, North Carolina
and the Defendant was represented by Theodore F.
Cummings, III ef Hickory, North Carolina and Lisa
Andrew Dubs of Hickory, North Carolina.
App. 21
From the file, record and evidence presented,
THE COURT MAKES THE FOLLOWING FINDINGS
OF FACT:
1. That this action was commenced
. by the filing of a duly verified complaint and the
issuance of a summons from the Office of the
Clerk of Superior Court of Catawba County on
January 30, 1996.
2. That at the time of commencement
of this action, on January 30, 1996, both the
Plaintiffs and the Defendant were citizens and
residents of the State of North Carolina,
Catawba County, and had been such
for in excess of six (6) months.
3. That on January 30, 1996, Plaintiffs
obtained a Ex-parte Emergency Order granting
possession of the minor child Amber Ashton
Holland, born September 3, 1993, and the
verified Complaint and Emergency Order were
served on the Defendant on February 6, 1996
while she was incarcerated in the Catawba
County jail in Newton, North Carolina.
4. That through her attorney, the
Defendant filed a duly verified answer on
March 29, 1996.
5. That the Plaintiffs are the
biological grandparents of the minor child
Amber Ashton Holland, and the biological
parents of the father of the minor child and each
being approximately fifty (50) years of age.
6. That the Defendant is_ the
biological mother of the minor child and being
approximately twenty-four (24) years of age.
App. 22
That the biological father of the minor child,
Wituam Stacy Speagle, is deceased, having died
on January 29, 1996. |
7. That the minor child, whose
custody is in question, Amber Ashley Holland,
was born September 3, 1993 and is now
approximately five (5) years of age.
8. That the Defendant and the father
of the minor child were never married to one
another.
9. That from the time of her birth, the
minor child was in the physical custody of her
mother, the Defendant, until October 24, 1995,
when a Temporary Order was entered by the
Honorable Oliver L. Noble granting shared
custody between the Defendant and the child’s
biological father.
10. That the Defendant and the minor
child resided with the Plaintiffs and the father of
the minor child from on or about October 1, 1993
until shortly after Christmas in December of
1993. That after the Defendant and the minor
child moved out of the home of the Plaintiffs,
the Plaintiffs continued to have contact with the
minor child.
- 11.‘ During the early part of 1994, the
Defendant and the infant child resided with the
Defendant's mother and step-father. During
this period, Defendant denied that William
Stacey Speagle was the biological father of
Amber Ashton Holland, however, a paternity
test confirmed that he was the biological father
of the child.
App. 23
12. That the Defendant subsequently
moved into a rental dwelling in the Bethlehem
Community of Alexander County where
William Stacy Speagle and the Plaintiffs visited
the infant child, Amber Aston Holland.
13. That during this period of time,
Defendant was having some type of romantic
affairs including sexual intercourse with men
other than William Stacy Speagle.
14. That thereafter the Defendant
moved to Raleigh, North Carolina on or about
October of 1994. While there, the Defendant
was employed as a topless dancer.
15. That the Defendant moved back to
Hickory, North Carolina on or about March of
1995. That from October of 1994 to March of
1995, the Plaintiffs and the biological father of
the minor child continued to have visitation
with the minor child and during such visitation
would participate in the care of the minor child.
16. That when the Defendant returned
to Hickory, North Carolina she was employed as
a topless dancer at Thee Dollhouse in Hickory,
North Carolina.
17. That there were periods of time
when the Defendant and the biological father of
the minor child would reconcile. That further,
during the summer of 1995 the parents of the
minor child did in fact reconcile but later
separated again during which time the
Defendant did not allow William Stacy Speagle
or the Plaintiffs to see the minor child.
—s
App. 24
18. That after the aforementioned
separation, the biological father, William Stacy
Speagle, filed two separate actions in Catawba
County, to will An action for the custody of the
minor child in Catawba County, File Number
95CVD2217; and an action Legitimating, Amber
Ashton Holland, in Catawba County, File
Number 95 SP 201.
19. The Defendant Christy Holland,
moved, taking the minor child, Amber, to the
Carolina Beach area of North Carolina.
20. That on October 24, 1995, the
Honorable Oliver L. Noble entered a Temporary
Order giving custody of the minor child to the
mother on the second Sunday in each month
through and including the next fourteen day
period and to the biological father at all other
times.
21. That during the period of 1993 and
1994, witnesses testified and the Court finds as a
fact, that Defendant was dancing at an
establishment in Hickory, North Carolina
known as the “PSST” CLUB, later know as the
TRIPLE A CLUB.
22. That Defendant was fired from the
Triple A Club for violating their rules in that
she ejaculated a male patron in front of the
crowd.
23. That Defendant was working at
“Thee Doilhouse” in August and September of
1995, and continued working at this
establishment into December of 1995.
App. 25
24. That while the biological father
had custody of said minor child Amber, he
resided with and maintained the child at the
home of the Plaintiffs who assisted in caring for
the minor child.
25. That from September of 1995, until
November of 1995, the Defendant worked part-
time as a topless dancer in Snead’s Ferry, North
Carolina, near the United States Marine Corp.
Base at Camp Lejeune. During this period, the
Defendant came to know and had a relationship
with Bryce Colby Delon, a marine stationed at
Camp Lejeune.
26. That according to the testimony of
Lance Corporal Heath Mosely, who was the
roommate of the Defendant's boyfriend, Bryce
Colby Delon at Camp Lejeune, the reputation of
both Defendant and her sister Brandy at the ~
Marine Base, was that of “whores”.
27. That on these weekends, both the
Defendant and her sister, would usually spend
the night in Room 316 of the United States’
Marine barracks, being the room of Bryce Colby
Delon and Heath Mosely, but did on occasions,
spend the night with these two (2) Marines at
the “Hostess House” located on the Marine Base
where the Defendant engaged in sexual
intercourse with Bryce Colby Delon and her
sister Brandy Holland and engaged in sexual
intercourse with Heath Mosely. In December
1995, the Defendant accompanied Mr. Delon to
Dallas, Texas where she met his parents and also
performed as a dancer at a Men’s Club.
App. 26
ee Ne |
28. That on one occasion, the minor
child, Amber, was seen by Lance Corporal
Heath Mosely at the residence of the
Defendant's mother, Ms. Geneva Gockel at Ms.
Gockel’s Carolina Beach residence,
approximately an hour’s drive from Snead’s
Ferry, at a time when Marine Bryce Colby Delon
was also at Ms. Gockei’s residence.
29. That during the period September
of 1995, through December of 1995, while
Defendant was in Hickory, she would leave the
minor child, Amber, in the care of on Roberta
Jewell while Defendant danced at Thee
Dollhouse.
That Ms. Jewell had been apprised by the
Catawba County Department of Social Services
that she was maintaining too many children in
her home at one time without a license.
That the Defendant would
sometimes come by Ms. Jewell’s house in the
early morning hours at approximately 1:00
o'clock or 2:00 o’clock a.m., to take the minor
child, Amber, to the Defendant's personal
residence.
That other dancers also left their children
in the care of Ms. Roberta Jewell during this
period.
30. That a written Order was signed
by the Honorable Clerk of Superior Court of
Catawba County on December 27, 1995, which
legitimated the child without changing the
surname.
App. 27
31. That on occasion the Defendant
would visit Bryce Colby Delon in his barracks
room or at the “Hostess House” located on the
Marine Base. And in December 1995, Defendant:
accompanied Mr. Delon to Dallas, Texas where
she met his parents and also performed as a
dancer at a Men’s Club.
32. That Heather Brown, friend of
Defendant, testified that she, along with the
Defendant, the minor child, Amber, and the
minor child of Miss Brown, traveled to
Morganton, North Carolina in December of
1995, to see a movie.
That Defendant stated, to Ms. Brown, that
William Stacy Speagle would be dead by
Christmas and it was taken care of.
33. That on January 18, 1996 the
Defendant and the biological father of the minor
child reconciled and began living together with
the minor child in the home of the Defendant.
34. That on January 29, 1996 the
biological father of the minor child was killed by
Bryce Colby Delon, who on the same night
committed suicide.
35. That on January 30, 1996, the
Defendant was arrested and charged with the
First-Degree Murder and Conspiracy to Commit
Murder of William Stacy Speagle.
36. That pursuant to the Emergency
Order entered ex-parte on the 30% day of
January 1996, physical possessiun of the minor
child, Amber, was given to the Plaintiffs.
App. 28
mY That the Defendant remained
incarcerated until March 26, 1996 at which time
she was bonded out of jail. The funds for the
purchase of her bond were provided by Robert
Eric Scitz, a citizen and resident of Dallas, Texas
whom the Defendant did not know prior to her
incarceration.
38. That on March 29, 1996, the
Defendant filed a duly verified Answer through
her then attorney, John F. Cutchim, of Newton,
North Carolina.
39. That on March 29, 1996 the
Defendant filed a motion seeking Temporary
Custody of the child, Amber.
40. That on April 30, 1996, the
Honorable L. Oliver Noble, Jr., signed an order,
which was filed may 2, 1996, staying further
proceedings in the case until the earlier of either
of the following:
A. The completion of the trial -
of Christy Lynette Holland for her
alleged part in the murder of William
Stacy Speagle
B. The Office of the District
Attorney of the 25'* Judicial District, the
North Carolina State Bureau of
Investigation and the Hickory Police
Department deciding to share all
information which Plaintiffs counsel
considers adequate to present the case of
the Plaintiff at a custody hearing.
App. 29
41. That between January 30, 1996 and
August of 1997, the minor child resided with the
Plaintiffs and their other son Scott Speagle.
During this period of time, numerous cards and
notes were sent by the Defendant to the minor
child, Amber, in care of the Plaintiffs herein and
that Plaintiff, Derene Speagle, read one of these
cards and showed some of the drawings on one
card to the minor child. That further, Defendant
made attempts to contact the minor child but
was not allowed to speak to the child until she
was allowed visitation in August, 1997 pursuant
to a Court Order entered on July 18, 1997. That
Plaintiff, William Speagle, testified that from the
time of the entry of the Temporary Order on
January 30, 1996 until the Court Ordered
visitation in August of 1997, the Defendant's
name was never mentioned to the minor child
nor was the Defendant ever discussed with the
minor child. That for a period of approximately
twenty months, the minor child had no contact
with the Defendant.
42. That shortly after being released
from jail, the Defendant traveled to Dallas,
Texas to stay with her sister, Brandie Renee
Holland, and eventually established her own
residence in Dallas, Texas. Subsequently, the
Defendant became employed as a receptionist
with the Scitz Group, Inc. of Dallas, Texas.
43. That after a six (6) week trial, the
Defendant, on June 29, 1997, was acquitted of
the charges of First Degree Murder and
Conspiracy to Commit Murder of William Stacy
Speagle.
App. 30
44. That Defendant through her
attorney, Lisa Andrew Dubs, filed a Motion,
dated July 9, 1997 verified by the Defendant,
seeking the care, custody, control and
supervision of the minor child, Amber Ashton
Holland, and seeking an Immediate Order
removing the child from the Plaintiffs and
placing the child with the Defendant.
45. That on July 10, 1997, defendant,
through her then attorneys, C. Randall Isenhour
and Lisa Andrew Dubs, filed another Motion
seeking, among other relief, that the Ex-Parte
Order which had been submitted to the
Honorable Nancy L. Einstein on July 10, 1997 be
treated as a Motion for an immediate Order and
that a hearing be set on July 15, 1997 in the
District Court of Catawba County.
46. That the Defendants Motions came
on before the Honorable Jonathan L. Jones who
ordered that the Motions were to be heard on
July 18, 1997 and that the presentation of
evidence was restricted to one hour for each the
Plaintiff and the Defendant. That after such
hearing Judge Jones Ordered that the minor
child, Amber, was to remain in the temporary
custody of the Plaintiffs and set a visitation
schedule, which was to commence on August
20, 1997.
47. That the visitation schedule took
place pursuant to the schedule set by Judge
Jones except for the first period of visitation,
visitation on December 12, 1997 and visitation
scheduled around the birth of the Defendant's
second child.
App. 31
48. On October 4, 1997 the Defendant
married Robert Eric Seitz. Further on June 15,
1998 the Defendant gave birth to a son,
Chandler, the half brother of the minor child,
Amber, and the son of Robert Eric Seitz.
49. That between October of 1997, and
the latter stages of the Defendants pregnancy,
she and Eric Seitz regularly flew from Dallas,
Texas, or other locations to Charlotte, North
Carolina and came to Hickory, North Carolina,
an approximate one (1) hour drive away, by
motor vehicle. That during this period of time,
they expended in excess of thirty thousand
dollars in travel expenses.
50. That the Defendant made two
payments to the Plaintiffs of child support, one
on April 30, 1997, in the amount of three
thousand, five hundred, eighty-seven dollars
($3,587.00) and another consisting of two money
orders, totaling one thousand, four hundred
dollars ($1,400.00), dated January 20, 1998
neither of which were negotiated or returned to
the Defendant.
51. That Mr. Springler, a certified
public accountant, employed by Mr. Seitz
testified that Mr. Seitz was well capable of
providing financial security for the Defendant,
his child and the minor child, Amber. Further,
shortly before the commencement of this trial,
Mr. eitz had paid off a Federal Tax Lien in the
approximate amount of one F-undred, eighteen
thousand dollars ($118,000.00) and was subject
to a Judgment from South Trust Bank of Florida
in excess of two hundred fifty thousand dollars
App. 32
($250,000.00) which judgment and lien were to
be paid within ninety days of his testimony and
from the proceeds from the sale of property,
‘owned by Mr. Seitz, in Amarillo, Texas.
52. That the Plaintiffs presented ample
testimony of their love for the minor child and
their ability to continue to provide for the care
and upbringing of the minor child.
53. That the Plaintiffs are of good
character and reputation and have a stable home
life and live, with the minor child Amber, in a
spacious, well kept, and comfortable home in
Hickory, North Carolina.
54. The minor child is well adjusted
and is currently enrolled in Kindergarten at St.
Stephens Elementary School, in Catawba
County, North Carolina. :
55. | That shortly after the minor child
began visitation with the Defendant, the
Plaintiffs sought professional assistance from
Dr. James Powell, Child Psychologist, of
Statesville, North Carolina, to assist the minor
child.
56. That Dr. Powell testified that there
was a strong bond between the minor child and
the Plaintiff, Derene Speagle.
57. That the court finds that since birth
of the child, through and including January 30,
1996, and continuing until the present, there has
been a close and loving relationship between the
Plaintiffs and the minor child and that the
continuation of this relationship is necessary to
protect the best interest and welfare of the minor
child.
App. 33
58. That the court finds that the
Defendant's lifestyle and romantic
involvement’s resulted in her neglect and
separation from the minor child.
59. The Court finds that any actions in
the past but not recent past by the Defendant
that may have been construed as inconsistent
with the presumption that the biological parent
will act always in the best interests of the child
do not render the Defendant unfit to have a
relationship with, but not custody of, her
daughter.
NOW THEREFORE, BASED UPON
THE FOREGOING FINDINGS OF FACTS,
THE COURT CONCLUDES AS A MATTER
OF LAW AS FOLLOWS:
e That the Court has jurisdiction
over the parties and the subject matter hereto.
ro That all pending issues are
properly before the court.
3. That the Plaintiffs are fit and
proper persons to be granted the care, custody,
control, and supervision of the minor child,
Amber Ashton Holland, and that at this time the
best interests of the child would be served
thereby granting custody to the Plaintiffs.
4. That the Defendant is unfit to have
custody of, but is a fit and proper person to be
granted visitation with, the minor child, Amber
Ashton Holland; and, the best interests of the
child thereby would be served by granting
_ liberal visitation to the Defendant.
. App. 34
BASED UPON THE FOREGOING
FINDINGS OF FACT AND CONCLUSIONS
OF LAW, IT IS ORDERED, ADJUDGED, AND
DECREED AS FOLLOWS:
1. Custody of the minor child, Amber
Ashton Holland, is granted to the Plaintiffs
subject to the following “visitation” rights and
privileges granted to Defendant.
A. Defendant shall have
visitation privileges with the minor child
at least once a month in accordance with a
schedule to be agreed upon by the
Plaintiffs and the Defendant. In the
absence of a schedule voluntarily agreed
upon by the Plaintiffs and the Defendant
then Defendant shall have visitation as
follows.
1. Visitation shall take
place during the minor child's
school Fall Break commencing at
4:00 p.m. on the day preceding and
ending at 8:00 p.m. on the date it
ends on even years.
2. Visitation shall take
place during the Thanksgiving
Holidays commencing at 4:00 p.m.
on the day preceding and ending
8:00 p.m. on the afternoon or early
evening of the next Sunday on
uneven years.
App. 35
3. Visitation shall take
place during Christmas vacation
commencing 4:00 p.m. on the
preceding day and ending 4:00
p.m. on December 26 on even
years and from December 26 until
8:00 p.m. the day before school
resumes on uneven years.
4. Visitation shall take
place during the Martin Luther
King Holiday commencing the
Friday before the observance at
4:00 p.m. and ending on the
holiday at 8:00 p.m. on uneven
years.
2. Visitation shall take
place during school Spring Break
commencing on the preceding day
it begins at 4:00 p.m. and ending
on the last day at 8:00 p.m. on even
years.
6. Visitation shall take
place during Easter Break
commencing on the preceding day
at 4:00 p.m. and ending on the last
day at 8:00 p.m. on uneven years.
7. Visitation shall take
place for school summer vacation
commencing one week from the
last day of classes at 4:00 p.m. and
continuing for a period of four
weeks and ending at 8:00 p.m. on
. the last day.
App. 36
8. Visitation for the
school year 1999-2000 and
subsequent years shall follow the
schedule of the Catawba County
School system.
9. The Defendant shall
have visitation with the minor
child on Mother’s Day each year.
Said visitation to begin 4:00 p.m.
on Friday and continue through
Sunday at 8:00 p.m. |
B. The Provisions for
“visitation” may be modified or adjusted
by mutual agreement of the parties, and
any other “visitation” which is agreed
upon by the parties is permitted. Any
reasonable request by a party for
custodial time or visitation shall not be
unreasonable denied or withheld, given
the circumstances at the time of the
request. Each party shall yield custody to
the other on special occasions such as
family gatherings, reunions, deaths,
weddings, or serious illnesses.
y The Defendant shall be responsible
for arranging the transportation the minor child
to Charlotte Douglas Airport, one hour prior to
the scheduled flight departure on the dates she
is to travel to Dallas, Texas for visitation and for
her return to the Defendant’s home when she
returns from Dallas, Texas to Charlotte, North
Carolina. The minor child may be picked up,
App. Yi
delivered and travel with a responsible adult
known to be so by either the Plaintiffs and or the
Defendant in the event the Defendant is unable
to personally travel to and from North Carolina.
The Defendant will notify the Plaintiffs in
advance of who will travel with the child during
visitation in the event the Defendant is not the
person traveling with the child. Both parties
will allow for time exceptions due to travel
problems. The party experiencing the problem
will use due diligence in contacting the other
party about any scheduling problems.
3. The parties shall not use or possess
any alcoholic beverage, illegal drug, controlled
substance, drug paraphernalia, sexually explicit
material, or dangerous harmful, illegal material
in the presence of the child. The parties shall
not be impaired at anytime in the presence of
the child and shall not permit the child to be in
the presence of anyone who uses or possesses
any of the materials named above, or to be in the
presence of anyone who is impaired by any
substance. The custodial party is responsible for
the supervision of the child in the use of any
potentially dangerous toys, vehicles or devices,
such as motorcycles, go carts, or electrical
appliances. The parties shall not allow the child
to play or use any device that is inappropriate or
dangerous considering the age and skill of the
child.
The parties shall keep all weapons or
dangerous equipment safely stored away from
the child and shall not allow the child to use or
possess a handgun or firearm, except when in
App. 38
the physical presence and under the direct
supervision and control of a responsible adult
familiar with the use and safety of firearms.
4. The parties shall not use or permit
anyone else to use or subject the child to the use
of any profane, obscene, indecent, derogatory,
or unkind language, particularly with reference
to another party, their relatives, acquaintances,
or friends. The parties shall not stalk, harass,
intimidate, threaten, assault, or molest the child,
each other, another party, or relative or
acquaintance of a party, and neither the
Plaintiffs or the Defendant shall not question the
child about the activities of the other.
A. The parties shall not use the
child to deliver or communicate any
message to another party.
B. Neither party will discuss,
with the child, the trial or the death of the
father of the child or any past
circumstances and activities of the
parties.
5. The parties shall not engage in
sexual activity while having custody or care of
the child, except with their respective spouse,
and out of the presence of the child.
A. _ The parties shall not sleep
with or occupy a bed with another person
to whom they are not married while
having custody or care of the child.
App. 39
6. The child will be returned
promptly after each visit.
pi The child may be taken for
vacations beyond the boundaries of the State of
North Carolina if the other party is given the
specific address and location of the child, a
phone number where the child can be contacted,
and the approximate time and date of arrival
and return of the child. Further, said location
shall be given to the other party in advance so
that reservations or the proposed location of the
child can be confirmed. It is anticipated in this
Order that the child will be allowed to travel to
the home of the Defendant in Dallas, Texas
during the regular visitation.
8. All terms of this Order are
enforceable pursuant to the contempt powers of
the Court set forth in North Carolina General
Statues, Chapter 5A, in addition to any other
remedy available at law or in equity. This
document shall serve as the Order of the Court.
The provisions of this Order are effective
immediately, and this Order is entered as
Judgment for all intents and purposes pursuant
to Rule 58 of the North Carolina Rules of Civil
Procedure, N.C.G.S. 1A on the date written
below.
9. That violation of the terms of this
Order shall result in punishment as _ for
Contempt in addition to any and all other
appropriate remedies at law or in equity.
— a
App. 40
~
10. That by and with the consent of
both counsel for the Defendant and counsel for
the Plaintiffs, this Order may be signed out of
term, out of session, and out of County.
Announced in open Court September 4, 1998, and
signed this 19" day of March 1999.
/s/
Honorable William A. Creech
District Court Judge Presiding,
by Special Commission Of
the Administrative Office of the Courts
App. 41
ER SS EST ane NS IGT Te
- |
+ +
Creech, what Amber would be if you would tear from
the heartstrings of that child her bond with the
Speagles and give her to this woman. You can predict
what she'll be if you leave her with the Speagles.
THE COURT: Thank you, Mr. Rudisill. Now, I
am—I know that this case has been delayed for a
considerable time and I’m certain that the litigants are
anxious to have a decision in this matter and I shall be
back with counsel as quickly as possible. I want to read
the brief and I have been going over my notes during
the days that we were not here and reviewing cases and
so I don’t feel that I have an awful lot that I need to do to
render a decision, but I shall be back in touch with
counsel as quickly as possible. And I would just like to
admonish everyone the same admonition I gave to you
yesterday, that we're dealing with a very precious
commodity, this child. And that I would hope that the
love that these litigants have for that child will in some
way enable them to transcind any personal animosity
that may exist between them. And having said that,
— we'll recess this Court. So we stand in recess.
(Court stood in recess.)
THE COURT: Well, I'd like to say to counsel
that I very much appreciate the representation that
each of you has made in this case. I know this has been
a very difficult case for everyone concerned and |
appreciate the great deal of work that each of you has
done. It’s very obvious from the presentations you
made, and I want to thank you very much for all the
courtesies that you extended to the Court, especially to
me, during this time.
App. 42
Now, as the judgment of this Court, and before
Saying it, I just want to reiterate what Senator Ervin
said a half century ago when he was a Justice of the
North Carolina Supreme Court, that the law is realistic
and certainly takes into consideration the fact that there
are changes, changes of conditions, changes of fortune
in general, and society. And while we’re making a
judicial award of custody today, that only determines
the rights of the parties at this time. It’s not permanent.
And, of course, it may be modified by the Court in the
future as there are events and the welfare of the child
require modification. But it’s the judgment of the
Court that the custody of the child, Amber Ashton
Holland, should remain with the grandparents who are
the plaintiffs in this action.
The Court does want to provide in the order that
there will be liberal visitation with the mother. And I
would hope that counsel could discuss this and would
discuss it with their clients. And if there’s any
possibility that the clients, among themselves, could
agree to a visitation schedule, then I would prefer that.
And I realize that this has been a period of
estrangement. And I hope, by negotiating more or less
directly with each other, that we can bring about some
type of reproachment. Because it certainly is not in the
best interest of this child to have this estrangement,
and so I‘m very much concerned about that.
If there is no agreement among the parties, then
I have taken the liberty of taking one of your order
forms that are used here, I understand, rather
perfunctorily, and I have designated the periods of
time that I think would be appropriate, which I shall
provide for if they can’t work out something otherwise.
And I would simply provide that the plaintiffs are to
App. 43
have primary custody, but the defendant is to have
liberal visitation. And by that I mean that -we’ll talk
about weekends that will begin at 6:00 on Friday_and
continue until 6:00 on the following Sunday. And I
would provide that the holidays be divided, that
Thanksgiving—For instance, I’ve indicated the times
for Thanksgiving, the times for Christmas. I’ve
provided for a week at Christmas. I have provided
that she will have four weeks visitation with her
mother during the summer. I have provided that she
may leave this jurisdiction for these visitations, and
that the defendant, the mother, will give the primary
custodians 30-days’ notice of the four weeks that she
intends to exercise visitation. And some things that I
didn’t address because I wasn’t certain, about a spring
break. And I presume counsel will address that and
work something out if there is to be a spring break. I
would provide for the Easter visitation also being
every other year unless it is a situation that we can
divide it and if there’s spring break at that time. But
I’m not familiar with your local customs, so I will leave
that up to counsel to work that out. Certainly, on the
parent's birthday, the child should have that time with
her mother, if at all possible. I don’t recall exactly
when the mother’s birthday is. The birthday of the
child, I would certainly provide for some visitation if it
can come on a weekend or if it would come at a time it
can be divided. I want these things to be reasonable.
And I want you to look through the—through this
order form that I have seen that you use here, and | am
going to provide other reasonable visitation.
And I don’t see any reason to provide that there
would be any third parties involved in exchanges of
the child. I think it’s time for these people to get
App. 44
together, have direct communication. And I expect
them to cooperate with each other, to be polite and
courteous to each other at all times. And I expect that,
in every instance, they will see that this child is
provided a salubrious environment. By that, I mean
not only legally correct, but morally correct, and that
no one who is involved with the care of this child
would be involved in any type of harmful, dangerous,
Or impairing substances, and that no disparaging
remarks of any kind will be tolerated. I want them to
be very certain about that, that they - I don’t want this
child to hear anything discussed about the parent's
background or anything of that sort. It’s unfortunate
that the child probably has already heard some things.
But in any event, I think that with regard to the order, I
don’t want any reference made to any assassination or
anything of that sort, simply the death of the father. |
don’t care about making this an affrontare to anyone. I
want this - Hopefully, we can start a procedure here
that will make things a little bit more amenable for all
the parties involved. I realize there are some doubts
about that in view of the other considerations. But |
want to provide a course that the child would be
promptly picked up and returned.
Now, I recognize that the mother is going to
be— presumably is going to be living in Texas, and I
would hope that we could work out some
accommodation. It would seem to me, because the
child is getting older that especially when there is to be
extended visitation, it may be, the way they do things
now at the airport, that the child, in a year or so, can fly
herself without being accompanied. I don’t know.
Airlines have various and sundry arrangements.
App. 45
But I do want to be certain that there is no
finding that the defendant is unfit for custody. The fact
that there have been conditions in the past, but not in
the recent past, which might have been construed as
being inconsistent with the presumption that the
biological parent will always act in the best interest of
the child. I think those things are not in the recent past
and I do not want any finding that she is unfit for
custody.
~ Now, having said those things to you, I would
like to leave counsel with the opportunity to discuss
with their clients what the Court has provided for.
And hopefully you can come up with an order that will
not in any way be an affrontare to either one of them,
taking into consideration that I’m certain that these
cases always are difficult for people to accommodate
when there’s been such bitterness in the past. But I
look forward to hearing from counsel. And I shall be
in Charlotte next week and I will be able to
communicate with you by telephone. And if you have
anything ready by the first of the week, which I’m not
suggesting that you have to do it that quickly, but I will
be there after Labor Day. I'll be in Charlotte the rest of
the week.
MR. RUDISILL: With your permission, I will
fax it
App. 46 .
No. 32PA01 TWENTY-FIVE-B- DISTRICT
SUPREME COURT OF NORTH CAROLINA
kkk KR R «RRL a RR a a CR zak RR RRR RR
(Speagle v. Seitz)
William Speagle, and wife, Derene Speagle
Vv
Christy Lynette Holland Seitz
From NC Court of Appeals
(COA99-1526)
From Catawba
(96CVD234)
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ORDER
Upon consideration of the petition filed by
Defendant for rehearing of the decision of this Court
pursuant to Rule 31, N.C. Rules of Appellate Procedure,
the following order was entered and is hereby certified
to the North Carolina Court of Appeals:
“Denied by order of the Court in conference, this the
31st day of January 2002.
Edmunds, J. Recused.
s/ Butterfield, J.
For the Court”
App. 47
WITNESS my hand and the seal of the Supreme Court
of North Carolina, this 4th day of February 2002.
Christie Speir Cameron
Clerk, Supreme Court of
North Carolina
/s/ Carol B. Templeton
Assistant Clerk
Copy to:
North Carolina Court of Appeals
Mr. Ralph A. White, Appellate Court Reporter
Mr. Forrest A. Ferrell, Attorney at Law, For Speagle
Mr. Stephen L. Palmer, Attorney at Law, For Speagle
Mr. Robert B. Long, Jr., Attorney at Law, For Spaegles
Mr. Thomas K. Maher, Attorney at Law, For Seitz
Mr. M. Gordon Widenhouse, Attorney at Law for Speitz
West Publishing Company
Lexis-Nexis
App. 48
IN THE SUPREME COURT OF NORTH CAROLINA
32PA01 (Speagle v Seitz) Catwaba
William Speagle, and wife, Derene Speagle
Vv
Christy Lynette Holland Seitz
NC Court of Appeals
(COA99-1536)
Catwaba
(96CVD234)
JUDGMENT
[Entered January 7, 2002]
This cause came to be argued upon the
transcript of the record from the North Carolina Court
of Appeals. Upon consideration whereof, this Court is
of the opinion that there is error in the record of said
Court of Appeals.
It is therefore considered and adjudged by the
Court here that the opinion of the Court, as delivered
by the Honorable I. Beverly Lake, Jr., Chief Justice, be
certified to the said North Carolina Court of Appeals to
the intent that the judgment of the Court of Appeals is
Reversed.
And it is considered and adjudged further, that
the Defendant do pay the costs of the appeal in this
Court incurred, to wit, the sum of Two-Hundred forty-
seven and 25/100 dollars ($247.25), and execution issue
therefor.
App. 49
Certified to the North Carolina Court of
Appeals, this the 7th day of January 2002.
A TRUE COPY CHRISTIE SPEIR CAMERON
Clerk, Supreme Court of
North Carolina
by: /s/
Assistant Clerk
App. 50
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.