Routten v. Routten, 374 N.C. 571 (2020)

Court of Appeals decision

• Facts: This case involves a custody order between parents born during their marriage. A permanent custody order was entered that awarded sole physical custody to plaintiff father. Defendant mother filed Rule 59 and 60 motions, and an amended permanent custody order was entered that granted sole legal and physical custody to father, denied visitation with mother, and allowed mother to have telephone conversations with the children 2 times a week. Mother appealed arguing the court erred in denying her visitation without determining she was unfit. Relying on Moore v. Moore, 160 N.C. App. 569 (2003), the Court of Appeals determined that the trial court violated mother’s constitutionally protected interest as a parent by awarding sole legal and physical custody of the children to father without first making a finding that she was unfit or acted inconsistently with her constitutional rights as a parent. There was a dissent and father appealed to the supreme court. This summary examines one of the two issues argued.
• G.S. 50-13.5(i) authorizes the trial court to deny visitation to a parent if there are written findings of fact that the parent is unfit to visit the child or visitation rights are not in the child’s best interests. The term “or” means either of the two circumstances is sufficient to deny visitation. The trial court found visitation would not be in the children’s best interests, which is a proper standard to apply under G.S. 50-13.5(i).
• In a custody action between two parents, both have the same constitutionally-protected paramount right to care, custody and control of their children. There is no constitutionally based presumption that favors one parent over another as opposed to a custody action involving a parent and a third-party (non-parent). The trial court applies the best interests of the child standard when making custody and visitation decisions between parents.
• Moore v. Moore misapplied the presumption that applies to a parent in an action with a non-parent to an action involving two parents and is overruled.