Child Custody Cannot Go to a Nonparty

Williams v. Johnson, 2022-NCCOA-120 (2022) (unpublished).

Facts: Mother and Father were in a custody case over their minor child. On April 28, 2017, Mother was awarded primary custody, and Father received visitation. A few years later, on August 11, 2020, the trial court modified the custody but later vacated their order, reverting back to the April 28 Order. In October of 2020, Father filed to modify the custody. Linda Key was called on to testify that, for the past three years, she was the caretaker for the minor child. Ms. Key is not a party to this case and has not entered into the case in any form. Trial court granted custody of the minor child to Ms. Key and found that both parents had acted contrary to their protected status as parents. Father appealed.

Rationale: The trial court has broad discretion in awarding custody to the party that will most benefit the child. Typically, the trial court is to determine which party or parties will do so. It would be improper to award custody to a nonparty. However, in certain instances, a Court of Appeal can turn nonparties who receive custody of a child to parties on appeal. This can happen in only a few circumstances, such as if the nonparty has formally established a significant relationship to the child and makes an affirmative showing that they wish to be involved in the custody case. That was not the situation in this case. Ms. Key did not indicate that she wished to be a party, did not indicate that she asked for custody, and no one asked her to take custody. Even on appeal, Ms. Key made no appearance to argue for her grant of custody. The matter was remanded, and the opinion seemed to hint that, if Ms. Key actually wanted to be awarded custody, she can join the case and request it.