Corbett v. Lynch, 251 N.C. App. 40 (2016)
Held:
Affirmed
- Facts: Brother and Sister were orphans as a result of Mother’s death in 2006 and Father’s death in 2015. Father was married to Stepmother at time of his death. Father’s will named Aunt and Aunt’s husband as testamentary guardians for the minor children.
- Procedural History:
- August 4, Stepmother filed a petition for guardianship and a petition for a stepparent adoption in superior court
- August 5, 2015, Stepmother initiated a custody action under G.S. Ch. 50 in district court. An ex parte temporary emergency custody order was entered based on the allegation that Aunt was coming to take children to Ireland.
- August 7, 2015, Aunt filed an application for guardianship in superior court and filed an answer, motion to dismiss, and counterclaim for custody in the district court custody action.
- August 17, 2015, clerk of superior court ordered guardianship to Aunt and her husband.
- District court dismissed the custody action as a result of the guardianship order. Stepmother appealed.
- The clerk of superior court had jurisdiction over the guardianship proceeding as the children had no “natural guardian” (no biological or adoptive parent). G.S. 35A-1221. The custody order did not divest the clerk of jurisdiction as G.S. 35A-1221(4) requires the application for guardianship to include a copy of any order awarding custody. Guardianship of the person includes custody. G.S. 35A-1241(a)(1) and -1202(10). NC statutes “provide for an override of a Chapter 50 custody determination by the appointment of a general guardian or guardian of the person.” The clerk retains jurisdiction over the guardianship proceeding, including modifications. G.S. 35A-1203(b), (c). The appointment of a general guardian in a Ch. 35A guardianship proceeding renders a Ch. 50 custody action moot.
- The holding “does not affect any jurisdiction the district court may have to issue ex parte orders under Chapter 50 for temporary custody arrangements where the conditions of G.S. 50-13.5(d)(2)-(3) are met.”
Category:
Civil Cases with Application to Child WelfareStage:
CustodyTopic:
Guardianship