Custody Involving Parents and Nonparents in North Carolina

There have been many cases in North Carolina that establish the strength and importance of a parent’s constitutionally protected right to the care and control of their children. Another recent decision in the North Carolina Court of Appeals has further established this right for biological parents, showing that it is not easy for nonparents to be awarded custody.

Background in Maness v. Kornegay

Defendant Mother had changed residences multiple times during the child’s life, including briefly leaving the child in Father’s care while she was homeless. Most recently, Mother and the child resided with Plaintiff Maness. Maness was Mother’s ex-boyfriend’s mom and had no blood relation to the child, but Maness allowed Mother and the child to stay with her. Maness had expressed concern over Mother having custody of the child, but she did not know Father and was unable to form an opinion on whether he should have custody.

While Mother and the child lived with Maness, Father visited the child every other weekend. In August 2020, Mother moved out and left the child in Maness’ care. Father was unaware of this change and continued trying to contact Mother, although he was unsuccessful for many months. In September 2020, Mother and Maness completed a temporary guardianship agreement, which gave custody to Maness. Father was not included in this agreement and did not consent.

In January 2021, Father spoke to Mother, who informed him she had moved to South Carolina with the child. He planned to visit them in South Carolina, but before he could make arrangements for this trip, the Chatham County Department of Social Services notified him that the child was in the custody of Maness. DSS suggested that Father regain custody by going to Maness’ home with the police. Despite the temporary guardianship agreement being deemed insufficient by the police and DSS, the child was left with Maness, who then prevented Father from exercising visitation with the child. Father filed a DSS report, and Maness filed for custody in May 2021.

Decisions and Orders in Maness v. Kornegay

A series of orders were entered over the course of this custody case, which lasted from the initial filing in May 2021 through the appealed order in November 2022. The November order stated that Father acted inconsistently with his constitutionally protected parental rights and that permanent custody would be set for trial and based on the child’s best interests. Previous orders had granted Father visitation from Thursday evening to Monday morning every other weekend with joint legal custody to Maness and Father.

In his appeal, Father argued that the trial court erred by deciding he acted inconsistent with his parental rights, and the appellate court agreed.

It should be noted that Father’s appeal involved a temporary custody order, which made the appeal interlocutory. Since the order that Father was appealing affected a substantial right, the appellate court decided to proceed with the interlocutory appeal.

The Court of Appeals reversed the trial court’s decision because it disagreed that Father acted inconsistent with his parental rights, which is one of the required factors if custody is to be granted to a nonparent in North Carolina. Questions about your custody situation should be addressed to an experienced family law attorney.