{ "id": 11917679, "name": "MICHAEL DWIGHT JONES, Plaintiff-Appellee v. MAYUMI J. PATIENCE, Defendant-Appellant", "name_abbreviation": "Jones v. Patience", "decision_date": "1996-02-06", "docket_number": "No. COA95-270", "first_page": "434", "last_page": "444", "citations": [ { "type": "official", "cite": "121 N.C. App. 434" } ], "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": "337 N.C. 397", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2551903 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/nc/337/0397-01" ] }, { "cite": "302 S.E.2d 259", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "261" } ], "opinion_index": 0 }, { "cite": "62 N.C. App. 103", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8520618 ], "year": 1983, "pin_cites": [ { "page": "106" } ], "opinion_index": 0, "case_paths": [ "/nc-app/62/0103-01" ] }, { "cite": "317 S.E.2d 408", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "411" } ], "opinion_index": 0 }, { "cite": "69 N.C. App. 551", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8526654 ], "year": 1984, "pin_cites": [ { "page": "555" } ], "opinion_index": 0, "case_paths": [ "/nc-app/69/0551-01" ] }, { "cite": "365 S.E.2d 672", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "89 N.C. App. 294", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8521588 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/89/0294-01" ] }, { "cite": "381 S.E.2d 179", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1989, "pin_cites": [ { "page": "183", "parenthetical": "affirming court-ordered consultation with psychiatrist or psychologist as exercise of inherent judicial authority premised upon court's statutory duty to promote interest and welfare of child" } ], "opinion_index": 0 }, { "cite": "94 N.C. App. 670", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527721 ], "year": 1989, "pin_cites": [ { "page": "676-677", "parenthetical": "affirming court-ordered consultation with psychiatrist or psychologist as exercise of inherent judicial authority premised upon court's statutory duty to promote interest and welfare of child" } ], "opinion_index": 0, "case_paths": [ "/nc-app/94/0670-01" ] }, { "cite": "228 S.E.2d 458", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "parenthetical": "dismissing appeal as interlocutory, Court noting court-ordered psychiatric examination permitted under N.C. Gen. Stat. \u00a7 1A-1, Rule 35" } ], "opinion_index": 0 }, { "cite": "290 N.C. 667", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564247, 8564197, 8564173, 8564279, 8564219 ], "year": 1976, "pin_cites": [ { "parenthetical": "dismissing appeal as interlocutory, Court noting court-ordered psychiatric examination permitted under N.C. Gen. Stat. \u00a7 1A-1, Rule 35" } ], "opinion_index": 0, "case_paths": [ "/nc/290/0667-04", "/nc/290/0667-02", "/nc/290/0667-01", "/nc/290/0667-05", "/nc/290/0667-03" ] }, { "cite": "224 S.E.2d 656", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "657", "parenthetical": "dismissing appeal as interlocutory, Court noting court-ordered psychiatric examination permitted under N.C. Gen. Stat. \u00a7 1A-1, Rule 35" } ], "opinion_index": 0 }, { "cite": "29 N.C. App. 509", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8556436 ], "year": 1976, "pin_cites": [ { "page": "510", "parenthetical": "dismissing appeal as interlocutory, Court noting court-ordered psychiatric examination permitted under N.C. Gen. Stat. \u00a7 1A-1, Rule 35" } ], "opinion_index": 0, "case_paths": [ "/nc-app/29/0509-01" ] }, { "cite": "254 S.E.2d 521", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1979, "pin_cites": [ { "page": "525" } ], "opinion_index": 0 }, { "cite": "297 N.C. 272", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8568736 ], "year": 1979, "pin_cites": [ { "page": "278-279" } ], "opinion_index": 0, "case_paths": [ "/nc/297/0272-01" ] }, { "cite": "275 S.E.2d 433", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "438", "parenthetical": "quoting State v. Hunter, 297 N.C. 272, 278-279, 254 S.E.2d 521, 525 (1979); see N.C.R. App. P. 10(b)(1" } ], "opinion_index": 0 }, { "cite": "302 N.C. 342", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565531 ], "year": 1981, "pin_cites": [ { "page": "349", "parenthetical": "quoting State v. Hunter, 297 N.C. 272, 278-279, 254 S.E.2d 521, 525 (1979); see N.C.R. App. P. 10(b)(1" } ], "opinion_index": 0, "case_paths": [ "/nc/302/0342-01" ] }, { "cite": "284 S.E.2d 171", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "173", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "54 N.C. App. 571", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524138 ], "year": 1981, "pin_cites": [ { "page": "573", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/54/0571-01" ] }, { "cite": "231 S.E.2d 26", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "29" } ], "opinion_index": 0 }, { "cite": "32 N.C. App. 154", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549118 ], "year": 1977, "pin_cites": [ { "page": "157" } ], "opinion_index": 0, "case_paths": [ "/nc-app/32/0154-01" ] }, { "cite": "243 S.E.2d 129", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "pin_cites": [ { "page": "142", "parenthetical": "explaining visitation is simply \"a lesser degree of custody\"" } ], "opinion_index": 0 }, { "cite": "294 N.C. 554", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574089 ], "year": 1978, "pin_cites": [ { "page": "575-576", "parenthetical": "explaining visitation is simply \"a lesser degree of custody\"" } ], "opinion_index": 0, "case_paths": [ "/nc/294/0554-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-13.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1995, "pin_cites": [ { "page": "(a)" }, { "page": "(b)" } ], "opinion_index": 0 }, { "cite": "179 S.E.2d 844", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1971, "pin_cites": [ { "page": "849" } ], "opinion_index": 0 }, { "cite": "10 N.C. App. 545", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8554881 ], "year": 1971, "pin_cites": [ { "page": "552" } ], "opinion_index": 0, "case_paths": [ "/nc-app/10/0545-01" ] }, { "cite": "336 S.E.2d 444", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "449" } ], "opinion_index": 0 }, { "cite": "77 N.C. App. 726", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525171 ], "year": 1985, "pin_cites": [ { "page": "733" } ], "opinion_index": 0, "case_paths": [ "/nc-app/77/0726-01" ] }, { "cite": "449 S.E.2d 750", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1994, "opinion_index": 0 }, { "cite": "337 N.C. 807", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2551889, 2549546, 2549156 ], "year": 1994, "opinion_index": 0, "case_paths": [ "/nc/337/0807-03", "/nc/337/0807-02", "/nc/337/0807-01" ] }, { "cite": "446 S.E.2d 17", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1994, "pin_cites": [ { "page": "23" }, { "page": "23" } ], "opinion_index": 0 }, { "cite": "337 N.C. 344", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2551639 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "354" }, { "page": "354" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0344-01" ] }, { "cite": "308 S.E.2d 288", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1983, "pin_cites": [ { "page": "291", "parenthetical": "child's \"right[] to support, inheritance, and custody\" and \"mental health, outlook, attitude, and personality\" may be directly affected by illegitimation" } ], "opinion_index": 0 }, { "cite": "309 N.C. 616", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4765995 ], "year": 1983, "pin_cites": [ { "page": "621", "parenthetical": "child's \"right[] to support, inheritance, and custody\" and \"mental health, outlook, attitude, and personality\" may be directly affected by illegitimation" } ], "opinion_index": 0, "case_paths": [ "/nc/309/0616-01" ] }, { "cite": "491 U.S. 110", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6211101 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "124", "parenthetical": "irrebuttable statutory presumption of paternity upheld because \"Constitution protects the sanctity of the family\"" }, { "page": "106", "parenthetical": "irrebuttable statutory presumption of paternity upheld because \"Constitution protects the sanctity of the family\"" } ], "opinion_index": 0, "case_paths": [ "/us/491/0110-01" ] }, { "cite": "460 N.E.2d 653", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "pin_cites": [ { "page": "655", "parenthetical": "court prevented illegitimation of child where, among other things, \"child ha[d] not been declared illegitimate by bastardy proceedings.\"" } ], "opinion_index": 0 }, { "cite": "10 Ohio App. 3d 36", "category": "reporters:state", "reporter": "Ohio App. 3d", "case_ids": [ 6709896 ], "year": 1983, "pin_cites": [ { "page": "39", "parenthetical": "court prevented illegitimation of child where, among other things, \"child ha[d] not been declared illegitimate by bastardy proceedings.\"" } ], "opinion_index": 0, "case_paths": [ "/ohio-app-3d/10/0036-01" ] }, { "cite": "466 N.Y.S.2d 762", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1983, "pin_cites": [ { "page": "765", "parenthetical": "spouse precluded from bastardizing child to further own self-interest in custody dispute" } ], "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 49-12.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1995, "opinion_index": 0 }, { "cite": "N.C. Gen. Stat. \u00a7 110-132", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1995, "opinion_index": 0 }, { "cite": "188 S.E.2d 317", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "326" } ], "opinion_index": 0 }, { "cite": "281 N.C. 159", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574448 ], "year": 1972, "pin_cites": [ { "page": "172" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0159-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 8-50.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1995, "pin_cites": [ { "page": "(bl)" } ], "opinion_index": 0 }, { "cite": "133 S.E.2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "pin_cites": [ { "page": "2" } ], "opinion_index": 0 }, { "cite": "260 N.C. 406", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574964 ], "year": 1963, "pin_cites": [ { "page": "408" } ], "opinion_index": 0, "case_paths": [ "/nc/260/0406-01" ] }, { "cite": "334 S.E.2d 46", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1985, "pin_cites": [ { "page": "51" } ], "opinion_index": 0 }, { "cite": "314 N.C. 412", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 4685603 ], "year": 1985, "pin_cites": [ { "page": "419" } ], "opinion_index": 0, "case_paths": [ "/nc/314/0412-01" ] }, { "cite": "159 S.E.2d 562", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "pin_cites": [ { "page": "568" } ], "opinion_index": 0 }, { "cite": "273 N.C. 189", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574914 ], "year": 1968, "pin_cites": [ { "page": "197" } ], "opinion_index": 0, "case_paths": [ "/nc/273/0189-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-13.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "pin_cites": [ { "page": "(a)" }, { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "462 S.E.2d 829", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "page": "830" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 467", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916279 ], "year": 1995, "pin_cites": [ { "page": "468" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0467-01" ] }, { "cite": "300 N.C. 380", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562520, 8562473, 8562545, 8562495 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0380-03", "/nc/300/0380-01", "/nc/300/0380-04", "/nc/300/0380-02" ] }, { "cite": "263 S.E.2d 578", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "581" } ], "opinion_index": 0 }, { "cite": "299 N.C. 457", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575245 ], "year": 1980, "pin_cites": [ { "page": "462" } ], "opinion_index": 0, "case_paths": [ "/nc/299/0457-01" ] }, { "cite": "445 S.E.2d 901", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1995, "pin_cites": [ { "page": "905" } ], "opinion_index": 0 }, { "cite": "337 N.C. 397", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2551903 ], "weight": 3, "pin_cites": [ { "page": "403-404" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0397-01" ] } ], "analysis": { "cardinality": 910, "char_count": 23012, "ocr_confidence": 0.75, "pagerank": { "raw": 4.171569166614196e-07, "percentile": 0.9122334931496006 }, "sha256": "a6e8cfea5a5eb7a70134967b8cfe653c0c05a6359d7adb84871f549f30fe6cfc", "simhash": "1:83e9d74e328ffcd4", "word_count": 3714 }, "last_updated": "2023-07-14T20:54:48.563497+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges GREENE and McGEE concur." ], "parties": [ "MICHAEL DWIGHT JONES, Plaintiff-Appellee v. MAYUMI J. PATIENCE, Defendant-Appellant" ], "opinions": [ { "text": "MARTIN, Mark D., Judge.\nDefendant appeals from award of visitation rights to plaintiff and denial of defendant\u2019s motion for anew trial or altered judgment under N.C.R. Civ. P. 59.\nThe trial court\u2019s findings may be summarized as follows: plaintiff and defendant were married on 10 May 1981. Edward Michael Jones (child) was born during the marriage on 9 August 1989. Plaintiff, defendant, and the child lived together as a family unit. Plaintiff and defendant separated on 23 November 1991 and divorced on 19 July 1993.\nDefendant knew, prior to the birth of the child, plaintiff was not the child\u2019s biological parent. Until early 1992 plaintiff believed he was the child\u2019s biological parent. For example, plaintiff was present at defendant\u2019s side during the delivery of the child; was involved in daily care and nurture of the child; and continued his relationship with the child after separation.\nIn February or March 1992, over two and one-half years after the child\u2019s birth, defendant advised plaintiff he was not the biological father of the child and unilaterally terminated plaintiff\u2019s visitation with the child.\nOn 18 August 1992 plaintiff filed a complaint seeking visitation with the child, alimony pendente lite, and equitable distribution. Based on the results of a voluntary blood grouping test which excluded plaintiff as the biological father, plaintiff alleged the child was born \u201cout of wedlock.\u201d On 28 December 1992 defendant filed an answer and counterclaim seeking, in part, custody of the child. In her answer defendant asserted, \u201cplaintiff is not the biological father of the child.\u201d\nOn 11 January 1993 the trial court issued an order resolving the issues of alimony pendente lite and equitable distribution. In that same order, the trial court, prior to awarding visitation, required the parties to submit to psychological evaluations. On 7 July 1993 the trial court granted temporary visitation to plaintiff and ordered periodic psychological evaluations of the child. The trial court also ordered plaintiff and defendant to submit to prospective psychological counseling as necessary.\nOn 18 August 1994 the trial court, conducting a \u201creview of plaintiff\u2019s visitation privileges,\u201d found plaintiff had \u201cnot missed a scheduled visitation\u201d during the preceding twelve-month period and, applying the best interests of the child standard, awarded visitation rights to plaintiff. In its order the trial court found as fact the child was bom \u201cout of wedlock.\u201d The trial court also found that blood grouping tests had excluded plaintiff as the biological father of the child.\nThe trial court further indicated, in its visitation order, defendant had represented to the court that Ed Greble was the biological father. The trial court found, however, that no blood grouping tests had been conducted to determine whether Greble was the father; that Greble had not executed an acknowledgement of paternity; and that the child\u2019s birth certificate had not been amended to reflect Greble as the biological father. Nevertheless, in the same order, the trial court directed defendant to \u201ctake appropriate steps to establish the paternity of the minor child so as to protect the child\u2019s legal rights.\u201d\nOn 23 August 1994 defendant filed a motion for a new trial or altered judgment under Rule 59. On 1 November 1994 the trial court denied defendant\u2019s Rule 59 motion.\nOn appeal defendant contends, among other things, that the trial court erred by: (1) awarding visitation rights to plaintiff in the absence of a finding that defendant is unfit to have custody of the child in violation of Petersen v. Rogers, 337 N.C. 397, 445 S.E.2d 901 (1995) and the First and Fourteenth Amendments to the United States Constitution; (2) delegating a judicial function by relying on psychological reports to support its conclusion visitation is in the best interests of the child; (3) admitting the psychological reports into evidence in the absence of their preparers, thereby denying defendant\u2019s right of cross-examination; (4) requiring defendant to undergo psychological counseling after the trial court adjudicated the visitation action; and (5) denying defendant\u2019s motion for a new trial or altered judgment from the order granting visitation to plaintiff.\nI.\nDefendant first contends the trial court erred by failing to give retroactive effect to the Supreme Court\u2019s ruling in Petersen v. Rogers, 337 N.C. 397, 445 S.E.2d 901 (1994).\nIt is well-settled that judicial decisions \u201care presumed to operate retroactively.\u201d MacDonald v. University of North Carolina, 299 N.C. 457, 462, 263 S.E.2d 578, 581, reh\u2019g denied, 300 N.C. 380, - S.E.2d - (1980). Because Petersen clarifies an area of law, Bivens v. Cottle, 120 N.C. App. 467, 468, 462 S.E.2d 829, 830 (1995), we believe it should be applied retroactively to ensure appropriate custody and visitation rulings. Accordingly, we conclude the trial court erred by failing to give Petersen retroactive effect.\nBased on Petersen and the First and Fourteenth Amendments to the United States Constitution, defendant alleges the trial court erred in awarding visitation to plaintiff where there was no finding defend-\u2019 ant was unfit to have custody of the child.\nPlaintiff, on the other hand, contends the child was born during the marriage and, therefore, under North Carolina law, he was presumed to be the child\u2019s father. Consequently, plaintiff argues granting reasonable visitation rights to him does not implicate Petersen, as he is not a stranger to the child, and, accordingly, visitation should be awarded in the best interests of the child.\nA.\nAt the outset we must determine whether plaintiff has standing to seek visitation with the child under N.C. Gen. Stat. \u00a7 50-13.1(a). Section 50-13.1(a) provides:\nAny parent, relative, or other person, agency, organization or institution claiming the right to custody of a minor child may institute an action or proceeding for the custody of such child, as hereinafter provided. Unless a contrary intent is clear, the word \u201ccustody\u201d shall be deemed to include custody or visitation or both.\nN.C. Gen. Stat. \u00a7 50-13.1(a) (1995).\nThe threshold question for our consideration is whether plaintiff is a \u201cparent\u201d under section 50-13.1(a).\nNorth Carolina courts have long recognized that children born during a marriage, as here, are presumed to be the product of the marriage. Eubanks v. Eubanks, 273 N.C. 189, 197, 159 S.E.2d 562, 568 (1968); 3 Robert E. Lee, North Carolina Family Law \u00a7 250 (4th ed. 1981). \u201c[T]he presumption is universally recognized and considered one of the strongest known to the law.\u201d In re Legitimation of Locklear, 314 N.C. 412, 419, 334 S.E.2d 46, 51 (1985); 3 Lee, North Carolina Family Law \u00a7 250. The marital presumption reflects the force of public policy which seeks to prevent \u201cparent[s] from bastardizing [their] own issue.\u201d State v. Rogers, 260 N.C. 406, 408, 133 S.E.2d 1, 2 (1963).\nThe trial court found, in its visitation order, the child was born \u201cout of wedlock.\u201d The trial court also found blood grouping tests excluded plaintiff as the child\u2019s biological father. Noting defendant contends Ed Greble is the biological father, the trial court nonetheless acknowledged: that no blood grouping tests had been conducted to determine whether Greble was the father; that Greble had not executed an acknowledgement of paternity; and that plaintiff remains listed as the natural father on the child\u2019s birth certificate.\nWe note, as the trial court properly recognized, that the marital presumption ordinarily may be rebutted by evidence of blood grouping tests excluding a putative father as the biological father. N.C. Gen. Stat. \u00a7 8-50.1(bl) (Cum. Supp. 1995); Wright v. Wright, 281 N.C. 159, 172, 188 S.E.2d 317, 326 (1972). Nevertheless, in the context of a custody dispute between the mother, and her husband or former spouse, concerning a child born during their lawful marriage, the marital presumption is rebuttable only upon a showing that another man has formally acknowledged paternity, see N.C. Gen. Stat. \u00a7 110-132 (1995), or has been adjudicated to be the father of the child, see N.C. Gen. Stat. \u00a7 49-12.1 (Cum. Supp. 1995). Cf. In re Boyles v. Boyles, 466 N.Y.S.2d 762, 765 (N.Y. App. Div. 1983) (spouse precluded from bastardizing child to further own self-interest in custody dispute); Nelson v. Nelson, 10 Ohio App. 3d 36, 39, 460 N.E.2d 653, 655 (1983) (court prevented illegitimation of child where, among other things, \u201cchild ha[d] not been declared illegitimate by bastardy proceedings.\u201d). See also Michael H. v. Gerald D., 491 U.S. 110, 124, 105 L. Ed. 2d 91, 106 (1988) (irrebuttable statutory presumption of paternity upheld because \u201cConstitution protects the sanctity of the family\u201d). To permit the marital presumption to be rebutted in this context, absent a determination that another man is the father of the child, would illegitimate the child in violation of the public policy of this State. See Settle v. Beasley, 309 N.C. 616, 621, 308 S.E.2d 288, 291 (1983) (child\u2019s \u201cright[] to support, inheritance, and custody\u201d and \u201cmental health, outlook, attitude, and personality\u201d may be directly affected by illegitimation); 1 Ann M. Haralambie, Handling Child Custody, Abuse and Adoption Cases \u00a7 3.02 (2d ed. 1987) (public policy prevents illegitimation \u201cespecially where there is no declaration of paternity by the natural father . . . .\u201d).\nIn the present case, there is no evidence another man has either been adjudicated the father of the child or acknowledged his paternity. Accordingly, the marital presumption \u2014 that plaintiff is the natural father of the child \u2014 has not been rebutted and the trial court erred in finding otherwise. The plaintiff thus has standing under section 50-13.1 to seek visitation rights with the child.\nB.\nAs plaintiff has standing under section 50-13.1(a) to seek visitation rights, we must now determine whether the trial court erred in awarding visitation to plaintiff.\nIn Petersen the Supreme Court held that \u201cin custody disputes between parents and those who are not natural parents . . . absent a finding that parents (i) are unfit or (ii) have neglected the welfare of their children, the constitutionally-protected paramount right of parents to custody, care, and control of their children must prevail.\u201d Petersen, 337 N.C. at 403-404, 445 S.E.2d at 905. Because plaintiff, as presumed father, is the parent of the child, the Petersen presumption, by its very definition, is not implicated in the present case. Accordingly, the trial court did not err by applying the \u201cbest interests of the child\u201d standard, see Phelps v. Phelps, 337 N.C. 344, 354, 446 S.E.2d 17, 23, reh\u2019g denied, 337 N.C. 807, 449 S.E.2d 750 (1994), and awarding visitation to the plaintiff.\nWe summarily reject defendant\u2019s contention that visitation between plaintiff and the child violates the First and Fourteenth Amendments to the United States Constitution.\nII.\nDefendant next alleges the trial court erred by delegating the award of visitation rights to a third-party by relying on psychological reports to support its conclusion that visitation is in the best interests of the child.\nAt the outset we note the scope of our review does not include the 7 July 1993 order because defendant only assigned error to the 18 August 1994 order. N.C.R. App. P. 10(a).\n\u201c[T]he award of visitation rights is a judicial function/\u2019 which the trial court may not delegate to a third-party. Brewington v. Serrato, 77 N.C. App. 726, 733, 336 S.E.2d 444, 449 (1985), (citing In re Custody of Stancil, 10 N.C. App. 545, 552, 179 S.E.2d 844, 849 (1971)). In awarding custody the trial court\u2019s \u201corder . . . must include findings of fact which support the determination of what is in the best interests of the child.\u201d N.C. Gen. Stat. \u00a7 50-13.2(a) (1995). This also applies to an order for visitation, which is a subset of custody. N.C. Gen. Stat. \u00a7 50-13.2(b); see Clark v. Clark, 294 N.C. 554, 575-576, 243 S.E.2d 129, 142 (1978) (explaining visitation is simply \u201ca lesser degree of custody\u201d). In addition, when awarding visitation the trial court must also include findings to support its determination the party awarded visitation is a \u201cfit\u201d person. Montgomery v. Montgomery, 32 N.C. App. 154, 157, 231 S.E.2d 26, 29 (1977).\nIn an order for custody, \u201cwhere there is competent evidence to support a judge\u2019s finding of fact, a judgment supported by such findings will not be disturbed on appeal. [Even so, the] facts found must be adequate for the appellate court to determine that the judgment is substantiated by competent evidence.\u201d Green v. Green, 54 N.C. App. 571, 573, 284 S.E.2d 171, 173 (1981) (citations omitted).\nWe conclude, after careful review of the record, that even if the trial court erroneously relied on the findings of the psychological reports, the trial court, nevertheless, made independent findings of fact sufficient to support its conclusions that (1) plaintiff is a fit and proper person for visitation with the child; and (2) visitation is in the best interests of the child.\nIII.\nDefendant further contends the trial court erred by admitting psychological reports into evidence in the absence of their preparers, thereby allegedly denying defendant\u2019s right of cross-examination.\nThe \u201cscope of review on appeal is confined to a consideration of those assignments set out in the record on appeal.\u201d N.C.R. App. P. 10(a). Because defendant did not assign error to the 21 June 1993 hearing, our review is limited to the introduction of the psychological reports at the 28 July 1994 hearing.\nThe failure to object or make a timely objection \u201cto the introduction of evidence is a waiver of the right to do so, and \u2018its admission, even if incompetent, is not a proper basis for appeal.\u2019 \u201d State v. Lucas, 302 N.C. 342, 349, 275 S.E.2d 433, 438 (1981) (quoting State v. Hunter, 297 N.C. 272, 278-279, 254 S.E.2d 521, 525 (1979); see N.C.R. App. P. 10(b)(1).\nAlthough the reports were never formally tendered, the transcript reveals testimony about their contents by both plaintiff and defendant and discussion of the reports by counsel and the trial court. The transcript reveals one objection by defendant concerning the reports. The objection was made after testimony by plaintiff on direct examination discussing the reports and their contents, after the admission of the reports into evidence by plaintiff, and after extensive testimony by the defendant on cross-examination about the contents of the reports. Further, the objection did not go to the admissibility of the reports but rather to defendant\u2019s testimony concerning the content of the reports. In the instant action, defendant failed to timely object to the introduction of the reports into evidence and to the testimony concerning their contents. Therefore, the admission of the reports is not assignable as error and we do not address the merits.\nIV.\nDefendant also contends the trial court erred by ordering defendant to submit to psychological counseling and obtain periodic psychological assessments of the child.\nThis Court has previously upheld court-ordered psychiatric examinations of parent and child prior to final adjudication of custody, see Williams v. Williams, 29 N.C. App. 509, 510, 224 S.E.2d 656, 657, disc. review denied, 290 N.C. 667, 228 S.E.2d 458.(1976) (dismissing appeal as interlocutory, Court noting court-ordered psychiatric examination permitted under N.C. Gen. Stat. \u00a7 1A-1, Rule 35), and visitation rights, see Rawls v. Rawls, 94 N.C. App. 670, 676-677, 381 S.E.2d 179, 183 (1989) (affirming court-ordered consultation with psychiatrist or psychologist as exercise of inherent judicial authority premised upon court\u2019s statutory duty to promote interest and welfare of child).\nIn its 18 August 1994 order the trial court found the \u201canimosity and hostility\u201d of defendant were \u201cpotentially harmful and damaging to the child\u201d and ordered defendant to \u201ccontinue to receive [psychological] counseling .... Her counselor ... is to provide a report to [the trial court after six months from the entry of the order detailing her progress].\u201d\nIn the present case, assuming custody of the child has been adjudicated by the trial court, and in the absence of any pending motion in the cause, we do not believe court-ordered counseling for defendant or the child is supportable under Rule 35 or in the exercise of the trial court\u2019s inherent authority. If custody has not been fully adjudicated, however, it is clear the trial court possesses authority to subject defendant and the child to court-ordered counseling. Id. We therefore remand for application of these guidelines to the record before the trial court.\nV.\nDefendant also contends the trial court erred by denying her Rule 59(a) motion for a new trial or altered judgment from the 18 August 1994 order which granted visitation to plaintiff. Defendant contends the trial court should have granted her a new trial under subsections (8) and (9) of the rule.\nUnder Rule 59 the trial court may grant a new trial for \u201c(8) [an e]rror in law occurring at the trial and objected to by the [movant],\u201d or \u201c(9) [a]ny other reason heretofore recognized as grounds for new trial.\u201d The trial court may also amend its findings of fact and conclusions of law. N.C. Gen. Stat. \u00a7 1A-1, rule 59(a) (1990).\nIn Eason v. Barber, 89 N.C. App. 294, 365 S.E.2d 672 (1988), this Court held where the trial court commits an error of law, the movant is entitled to a new trial. However, on appeal, where the trial court\u2019s ruling is correct upon any theory of law, the judgment of the lower court stands. Payne v. Buffalo Reinsurance Co., 69 N.C. App. 551, 555, 317 S.E.2d 408, 411 (1984).\nThe trial court denied defendant\u2019s Rule 59 motion on the grounds that (1) Petersen did not apply retroactively; (2) the law was applied correctly; (3) defendant failed to object to plaintiffs standing as the child\u2019s non-biological father; and (4) plaintiff was married to defendant at the time of the child\u2019s birth and was not a stranger to the child within the meaning of Petersen.\nBecause we have determined Petersen applies retroactively, we likewise conclude the trial court erred in denying defendant\u2019s Rule 59 motion on that ground. Nevertheless, we affirm the trial court\u2019s denial of defendant\u2019s Rule 59 motion as we hold the trial court\u2019s ruling does not implicate Petersen. See Phelps, 337 N.C. at 354, 446 S.E.2d at 23.\nWe have carefully reviewed defendant\u2019s remaining assignments of error and find them to be without merit.\nAffirmed in part, reversed in part, and remanded.\nJudges GREENE and McGEE concur.\n. The record before this Court does not reflect adjudication of defendant\u2019s counterclaim for custody. It is beyond question, however, that the existence of prospective \u201canimosity or hostility\u201d on the part of either party, after entry of any custody or visitation decree, may subsequently be used to establish a change of circumstances sufficient to justify modification of custody or visitation as necessary to protect the best interests of the child. See In re Jones, 62 N.C. App. 103, 106, 302 S.E.2d 259, 261 (1983).", "type": "majority", "author": "MARTIN, Mark D., Judge." } ], "attorneys": [ "Karro, Sellers, Langson & Gorelick, by Marshall H. Karro, and Lana P. Poynor, for plaintiff-appellee.", "Edward P. Hausle, PA., by Edward P. Hausle, for defendant-appellant." ], "corrections": "", "head_matter": "MICHAEL DWIGHT JONES, Plaintiff-Appellee v. MAYUMI J. PATIENCE, Defendant-Appellant\nNo. COA95-270\n(Filed 6 February 1996)\n1. Parent and Child \u00a7 19 (NCI4th)\u2014 custody dispute between parents and non-parents \u2014 ruling applied retroactively\nThe Supreme Court\u2019s ruling in Petersen v. Rogers, 337 N.C. 397, should be applied retroactively to ensure appropriate custody and visitation rulings.\nAm Jur 2d, Parent and Child \u00a7\u00a7 23 et seq.\n2. Illegitimate Children \u00a7 52 (NCI4th); Divorce and Separation \u00a7 377 (NCI4th)\u2014 child born during marriage\u2014 presumed product of marriage \u2014 presumption not rebutted \u2014 standing of plaintiff to seek visitation rights\nIn the context of a custody dispute between the mother and her husband or former spouse concerning a child born during their lawful marriage, the marital presumption that such child is the product of the marriage is rebuttable only upon a showing that another man has formally acknowledged paternity or has been adjudicated to be the father of the child; in this case the marital presumption had not been rebutted, the trial court erred in finding otherwise, and plaintiff thus had standing under N.C.G.S. \u00a7 50-13.1(a) to seek visitation rights with the child.\nAm Jur 2d, Bastards \u00a7 48; Divorce and Separation \u00a7\u00a7 1098-1100.\n3. Divorce and Separation \u00a7 377 (NCI4th)\u2014 plaintiff as presumed father \u2014 Petersen presumption inapplicable \u2014 best interests of child standard appropriate\nThe presumption of Petersen v. Rogers, 337 N.C. 397, as to custody disputes between parents and those who are not natural parents did not apply in this case since plaintiff, as presumed father, was the parent of the child; accordingly, the trial court did not err by applying the \u201cbest interests of the child\u201d standard in awarding visitation rights to plaintiff.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 1143-1145.\n4. Divorce and Separation \u00a7 378 (NCI4th)\u2014 child visitation\u2014 reliance on psychological evaluations \u2014 sufficiency of independent findings to support conclusions\nEven if the trial court erroneously relied on the findings of psychological reports, the court did not delegate the award of visitation rights to a third party where the court made independent findings of fact sufficient to support its conclusions that plaintiff was a fit and proper person for visitation with the child and that visitation was in the best interests of the child.\nAm Jnr 2d, Divorce and Separation \u00a7\u00a7 1143-1145.\n5. Appeal and error \u00a7 156 (NCI4th)\u2014 failure to make timely objection \u2014 no consideration on appeal\nDefendant failed to make timely objection to the introduction of psychological reports and to the testimony concerning their contents; therefore, the admission of the reports was not assignable as error.\nAm Jur 2d, Appellate Review \u00a7\u00a7 84 et seq.\n6. Divorce and Separation \u00a7 337 (NCI4th); Discovery and Depositions \u00a7 48 (NCI4th)\u2014 court ordered counseling for mother and child \u2014 authority of court to order\nIf custody of the child had been adjudicated by the trial court, and in the absence of any pending motion in the cause, court ordered counseling for defendant or the child was not supportable under N.C.G.S. \u00a7 1A-1, Rule 35 or in the exercise of the court\u2019s inherent authority; however, if custody had not been fully adjudicated, the court did possess authority to subject defendant and the child to court ordered counseling where it found animosity and hostility on the part of defendant which were potentially harmful and damaging to the child.\nAm Jur 2d, Depositions and Discovery \u00a7\u00a7 282 et seq.; Divorce and Separation \u00a7\u00a7 963 et seq.\nAppeal by defendant from orders entered 18 August 1994 and 1 November 1994 by Judge Jane V. Harper in Mecklenburg County District Court. Heard in the Court of Appeals 5 December 1995.\nKarro, Sellers, Langson & Gorelick, by Marshall H. Karro, and Lana P. Poynor, for plaintiff-appellee.\nEdward P. Hausle, PA., by Edward P. Hausle, for defendant-appellant." }, "file_name": "0434-01", "first_page_order": 468, "last_page_order": 478 }