{ "id": 8527679, "name": "JAMES BLACK and SUSAN BLACK and PANSY S. OWENSBY and PAUL N. OWENSBY, Plaintiffs v. KIMBERLY DAWN GLAWSON and husband, CHRIS GLAWSON and DAVID DEMPSEY and MARK HUTCHINS, Defendants and KIMBERLY BLACK HUTCHINS, Plaintiff v. DARRYL MARK HUTCHINS, Defendant", "name_abbreviation": "Black v. Glawson", "decision_date": "1994-04-19", "docket_number": "No. 9229DC1307", "first_page": "442", "last_page": "447", "citations": [ { "type": "official", "cite": "114 N.C. App. 442" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "25 ALR3d 7", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "264 N.C. 711", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575017 ], "year": 1965, "opinion_index": -1, "case_paths": [ "/nc/264/0711-01" ] }, { "cite": "344 S.E.2d 363", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "opinion_index": 0 }, { "cite": "81 N.C. App. 337", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522905 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/nc-app/81/0337-01" ] }, { "cite": "142 S.E.2d 592", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "264 N.C. 711", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575017 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/264/0711-01" ] }, { "cite": "379 S.E.2d 30", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1989, "opinion_index": 1 }, { "cite": "324 N.C. 373", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2483734 ], "year": 1989, "opinion_index": 1, "case_paths": [ "/nc/324/0373-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 4-1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1986, "opinion_index": 1 }, { "cite": "153 S.E.2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 1 }, { "cite": "269 N.C. 676", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565575 ], "year": 1967, "opinion_index": 1, "case_paths": [ "/nc/269/0676-01" ] }, { "cite": "154 S.E.2d 526", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 1 }, { "cite": "270 N.C. 441", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568826 ], "year": 1967, "opinion_index": 1, "case_paths": [ "/nc/270/0441-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 17-39.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 1 }, { "cite": "248 S.E.2d 863", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 1 }, { "cite": "295 N.C. 734", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568873, 8568915, 8568947, 8568983, 8568829 ], "year": 1978, "opinion_index": 1, "case_paths": [ "/nc/295/0734-02", "/nc/295/0734-03", "/nc/295/0734-04", "/nc/295/0734-05", "/nc/295/0734-01" ] }, { "cite": "246 S.E.2d 45", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 1 }, { "cite": "37 N.C. App. 364", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552780 ], "year": 1978, "opinion_index": 1, "case_paths": [ "/nc-app/37/0364-01" ] }, { "cite": "307 S.E.2d 362", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 1 }, { "cite": "309 N.C. 460", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4762703, 4761620, 4769270, 4764637, 4761822 ], "year": 1983, "opinion_index": 1, "case_paths": [ "/nc/309/0460-01", "/nc/309/0460-03", "/nc/309/0460-05", "/nc/309/0460-04", "/nc/309/0460-02" ] }, { "cite": "304 S.E.2d 262", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "opinion_index": 1 }, { "cite": "63 N.C. App. 113", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524199 ], "year": 1983, "opinion_index": 1, "case_paths": [ "/nc-app/63/0113-01" ] }, { "cite": "315 S.E.2d 750", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "opinion_index": 1 }, { "cite": "68 N.C. App. 686", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527850 ], "year": 1984, "opinion_index": 1, "case_paths": [ "/nc-app/68/0686-01" ] }, { "cite": "405 U.S. 645", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11723248 ], "weight": 2, "year": 1972, "pin_cites": [ { "page": "651", "parenthetical": "citations omitted" }, { "page": "558", "parenthetical": "citations omitted" } ], "opinion_index": 1, "case_paths": [ "/us/405/0645-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-13.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1987, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 1 }, { "cite": "142 S.E.2d 592", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1965, "pin_cites": [ { "page": "596" }, { "page": "596" } ], "opinion_index": 1 }, { "cite": "264 N.C. 711", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575017 ], "weight": 2, "year": 1965, "pin_cites": [ { "page": "716" }, { "page": "715" } ], "opinion_index": 1, "case_paths": [ "/nc/264/0711-01" ] } ], "analysis": { "cardinality": 521, "char_count": 10453, "ocr_confidence": 0.701, "pagerank": { "raw": 5.676830387708631e-08, "percentile": 0.3566887490351754 }, "sha256": "d92fa9170cd9fcdcda96974ab0a6043bebb805ddbbf3618003ca72abf96f8a57", "simhash": "1:0cc3ad6006096543", "word_count": 1765 }, "last_updated": "2023-07-14T17:01:59.295429+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judge WYNN concurs.", "Judge McCRODDEN concurs in a separate opinion." ], "parties": [ "JAMES BLACK and SUSAN BLACK and PANSY S. OWENSBY and PAUL N. OWENSBY, Plaintiffs v. KIMBERLY DAWN GLAWSON and husband, CHRIS GLAWSON and DAVID DEMPSEY and MARK HUTCHINS, Defendants and KIMBERLY BLACK HUTCHINS, Plaintiff v. DARRYL MARK HUTCHINS, Defendant" ], "opinions": [ { "text": "LEWIS, Judge.\nThis case concerns the trial court\u2019s decision to award custody of Brittney Dawn Hutchins to defendant Mark Hutchins (hereinafter \u201cHutchins\u201d), her biological father. Plaintiffs are relatives of Kimberly Dawn Glawson (hereinafter \u201cGlawson\u201d), Brittney\u2019s mother, who is now deceased. Before her death, Glawson indicated that she wanted plaintiffs to have custody of her children. Plaintiffs filed an action for custody in November 1989. In June 1992 the court entered an order declaring Hutchins to be the biological father of Brittney and awarding him custody. Plaintiffs now appeal.\nThe sole issue to be addressed in this case is the proper standard to be used in determining whether to award custody of a minor child to a natural parent or to a third party. The standard actually used by the trial court is somewhat ambiguous. Plaintiffs contend the court erroneously believed it had to award custody to the natural parent absent a finding of unfitness. Hutchins replies that the court correctly awarded custody based upon the best interest of the child.\nAccording to the relevant statute,\n[a]n order for custody of a minor child entered pursuant to this section shall award the custody of such child to such person, agency, organization or institution as will best promote the interest and welfare of the child.\nN.C.G.S. \u00a7 5043.2(a) (1987). Prior to the enactment of the present version of this statute, the Supreme Court held that custody must be awarded to a natural parent absent a finding of unfitness. Jolly v. Queen, 264 N.C. 711, 142 S.E.2d 592 (1965). When Jolly was decided, the statute read that a court \u201cmay\u201d award custody based upon the best interest of the child. See N.C.G.S. \u00a7 17-39.1 (1965) (repealed in 1967). After the Jolly decision, the legislature amended the statute to state that a court \u201cshall\u201d award custody based upon the best interest of the child. We believe the Jolly Court was able to reach its result because, under the \u201cmay\u201d version of the statute, a court was not limited to a strict \u201cbest interest and welfare\u201d analysis. It could impose other requirements, such as unfitness of the natural parent, in addition to the best interest test. Now, with the statutory change, a court must award custody based only upon the best interest and welfare of the child. A court must have discretion to determine the best interest of a child, and should not be restricted to awarding custody to a natural parent in the absence of a finding of unfitness.\nMoreover, recent decisions of this Court discussing this statute and the best interest test indicate that it is not necessary to prove a natural parent unfit in order to award custody to a third party. Although there is a rebuttable presumption in favor of a natural parent, see, e.g., Best v. Best, 81 N.C. App. 337, 344 S.E.2d 363 (1986), it is not necessary to prove unfitness in order to overcome the presumption. Id. We note that the statute itself imposes no presumption at all in favor of a natural parent, but find that we are bound by the decisions of this Court imposing such a presumption.\nIn the case at hand, the trial court\u2019s order refers to a presumption in favor of defendant and the fact that the presumption has not been rebutted. The court concludes that the best interest of the child requires that she be placed with her father. We see no reason to disturb this finding. We have reviewed plaintiffs\u2019 other contentions and find them to be meritless.\nThe order of the trial court is\nAffirmed.\nJudge WYNN concurs.\nJudge McCRODDEN concurs in a separate opinion.", "type": "majority", "author": "LEWIS, Judge." }, { "text": "Judge McCRODDEN,\nconcurring in the result.\nI write separately to disagree with the majority in its determination that N.C. Gen. Stat. \u00a7 50-13.2(a) (1987) modified the common law rule that, absent a showing of unfitness, a natural parent was entitled to the custody of his or her child.\n\u201cThe rights to conceive and to raise one\u2019s children have been deemed \u2018essential,\u2019 \u2018basic civil rights of man,\u2019 and \u2018[rjights far more precious . . . than property rights.\u2019 \u201d Stanley v. Illinois, 405 U.S. 645, 651, 31 L.Ed.2d 551, 558 (1972) (citations omitted). Although our Court has previously interpreted N.C.G.S. \u00a7 5043.2(a), which was enacted in 1967, to have modified the common law in this regard, see, e.g., In Re Gwaltney, 68 N.C. App. 686, 315 S.E.2d 750 (1984); Campbell v. Campbell, 63 N.C. App. 113, 304 S.E.2d 262, disc. review denied, 309 N.C. 460, 307 S.E.2d 362 (1983); In Re Kowalzek, 37 N.C. App. 364, 246 S.E.2d 45, disc. review denied, 295 N.C. 734, 248 S.E.2d 863 (1978), I do not believe that this is a proper interpretation.\nN.C.G.S. \u00a7 50-13.2(a) states in pertinent part:\nAn order for custody of a minor child entered pursuant to this section shall award the custody of such child to such person, agency, organization or institution as will best promote the interest and welfare of the child.\nPrior to the enactment of this statute, N.C. Gen. Stat. \u00a7 17-39.1, enacted in 1957 and repealed fin 1967, contained similar language:\n[T]he judge may award the charge or custody of the child to such person, organization, agency or institution for such time, under such regulations and restrictions, and with such provisions and directions, as will, in the opinion of the judge, best promote the interest and welfare of said child.\nOur Supreme Court did not, however, read that statute to repeal the common law doctrine that a natural parent, absent a finding of unfitness, is entitled to the custody and care of a child. In Jolly v. Queen, 264 N.C. 711, 716, 142 S.E.2d 592, 596 (1965), Justice Sharp stated this principle in no uncertain terms: \u201c[T]he parents\u2019 paramount right to custody would yield only to a finding that they were unfit custodians because of bad character or other, special circumstances.\u201d See also Brake v. Mills, 270 N.C. 441, 154 S.E.2d 526 (1967); Wilson v. Wilson, 269 N.C. 676, 153 S.E.2d 349 (1967).\nJustice Sharp imagined some of the mischief that could come from abandoning the principle that, as against non-parents, a natural parent, absent unfitness, is entitled to custody of his child: \u201cConceivably, a judge might find it to be in the best interest of a legitimate child of poor but honest, industrious parents, who were providing him with the necessities, that his custody be given to a more affluent neighbor or relative who had no child and desired him.\u201d Jolly, 264 N.C. at 715, 142 S.E.2d at 596. The Supreme Court, therefore, did not read the language of N.C.G.S. \u00a7 17-39.1, the precursor to N.C.G.S. \u00a7 5043.2(a), as abrogating the common law principle. Because \u201cthe common law . . . which has not been otherwise provided for in whole or in part, not abrogated, repealed, or become obsolete, [is] ... in full force within this State,\u201d N.C. Gen. Stat. \u00a7 4-1 (1986), I believe that prior cases of this Court renouncing the principle are in error.\nThe majority would have us believe that when the legislature changed the word may found in N.C.G.S. \u00a7 17-39.1 to shall in N.C.G.S. \u00a7 50-13.2(a), it altered the common law presumption. The statutory requirement, however, that the trial court must award the custody of a child in a way that will best promote the interest of the child in no way abrogates the common law presumption that, absent parental unfitness, the best interest of the child is that he remain with his natural parent(s). As the characteristic that will defeat the presumption, unfitness is an integral part of the presumption, and the majority\u2019s abrogation of that part encourages exactly the mischief Justice Sharp feared.\nFurthermore, the majority\u2019s reading of the two statutes promotes the conclusion that, prior to the amendment, a trial court, acting under the permissive (as opposed to mandatory) language of section 17-39.1, could have ignored the common law presumption if it had so chosen. This reading, however, is contrary to N.C.G.S. \u00a7 4.1.\nI realize that prior rulings of panels of this Court bind succeeding panels. In the Matter of Appeal from Civil Penalty, 324 N.C. 373, 379 S.E.2d 30 (1989). However, prior holdings eroding the common law principle concerning custody are in conflict with the Supreme Court\u2019s rulings, are ill-advised, and do not bind us.\nI would affirm the trial court on the basis that, since there was no showing that the natural father was unfit, he is entitled to the custody of his child. Such a ruling would send a clear signal to our courts and would stop the mischief Justice Sharp envisioned.", "type": "concurrence", "author": "Judge McCRODDEN," } ], "attorneys": [ "J. Christopher Callahan for plaintiffs-appellants.", "J.H. Burwell, Jr., for defendant-appellee Mark Hutchins." ], "corrections": "", "head_matter": "JAMES BLACK and SUSAN BLACK and PANSY S. OWENSBY and PAUL N. OWENSBY, Plaintiffs v. KIMBERLY DAWN GLAWSON and husband, CHRIS GLAWSON and DAVID DEMPSEY and MARK HUTCHINS, Defendants and KIMBERLY BLACK HUTCHINS, Plaintiff v. DARRYL MARK HUTCHINS, Defendant\nNo. 9229DC1307\n(Filed 19 April 1994)\nDivorce and Separation \u00a7 337 (NCI4th>\u2014 child custody \u2014natural parent or third party \u2014 standard of determination\nThe trial court did not abuse its discretion by awarding custody of a minor child to the biological father where the mother, now deceased, had indicated that she wanted custody to be . with plaintiffs, her relatives. Prior to the enactment of the present version- of N.C.G.S. \u00a7 50-13.2(a), the Supreme Court held that custody must be awarded to a natural parent absent a finding of unfitness, Jolly v. Queen, 264 N.C. 711 (1965); however, after that decision, the legislature amended the statute to state that a court \u201cshall\u201d rather than \u201cmay\u201d award custody based upon the best interest of the child. Recent decisions discussing this statute and the best interest test indicate that it is not necessary to prove a natural parent unfit in order to award custody to a third party, although there is a rebuttable presumption in favor of a natural parent. In this case, the trial court\u2019s order refers to a presumption in favor of defendant and the fact that the presumption has not been rebutted, then concludes that the best interest of the child requires that she be placed with her father. There is no reason to disturb this finding.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 963 et seq.\nAward of custody of child where contest is between child\u2019s father and grandparent. 25 ALR3d 7.\nJudge McCRODDEN concurring in the result.\nAppeal by plaintiffs from order entered 1 June 1992 by Judge Robert S. Cilley in Rutherford County District Court. Heard in the Court of Appeals 29 October 1993.\nJ. Christopher Callahan for plaintiffs-appellants.\nJ.H. Burwell, Jr., for defendant-appellee Mark Hutchins." }, "file_name": "0442-01", "first_page_order": 470, "last_page_order": 475 }