{ "id": 11889456, "name": "JANE & DENNIS SHARP, Petitioners v. TAMULA-JEAN SHARP, Respondent. In Re: Samantha E. Ferrell and Amanda Lynn Sharp", "name_abbreviation": "Sharp v. Sharp", "decision_date": "1996-11-05", "docket_number": "COA95-1388", "first_page": "357", "last_page": "363", "citations": [ { "type": "official", "cite": "124 N.C. App. 357" } ], "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": "N.C. Gen. Stat. \u00a7 5043.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 2, "year": 1995, "pin_cites": [ { "page": "(a)" }, { "page": "635" } ], "opinion_index": -1 }, { "cite": "461 S.E.2d 745", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "750" } ], "opinion_index": -1 }, { "cite": "31 ALR3d 1187", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "29 ALR3d 366", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "25 ALR3d 7", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "341 N.C. 629", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793178 ], "weight": 2, "opinion_index": -1, "case_paths": [ "/nc/341/0629-01" ] }, { "cite": "397 S.E.2d 651", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "100 N.C. App. 664", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8527425 ], "year": 1990, "opinion_index": 0, "case_paths": [ "/nc-app/100/0664-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7\u00a7 50", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "opinion_index": 0 }, { "cite": "281 S.E.2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1981, "pin_cites": [ { "page": "374-75" }, { "page": "375-76", "parenthetical": "rejecting the argument that foster parents should be barred from seeking an adoption determination on the theory they lacked standing" } ], "opinion_index": 0 }, { "cite": "303 N.C. 699", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575162 ], "weight": 2, "year": 1981, "pin_cites": [ { "page": "706-07" }, { "page": "707-08" } ], "opinion_index": 0, "case_paths": [ "/nc/303/0699-01" ] }, { "cite": "119 S.E.2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1961, "pin_cites": [ { "page": "191" }, { "page": "191" } ], "opinion_index": 0 }, { "cite": "254 N.C. 434", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626635 ], "weight": 2, "year": 1961, "pin_cites": [ { "page": "436-37" }, { "page": "436-37" } ], "opinion_index": 0, "case_paths": [ "/nc/254/0434-01" ] }, { "cite": "238 S.E.2d 149", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "293 N.C. 360", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8564227, 8564314, 8564284, 8564253, 8564383 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc/293/0360-01", "/nc/293/0360-04", "/nc/293/0360-03", "/nc/293/0360-02", "/nc/293/0360-05" ] }, { "cite": "236 S.E.2d 715", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "pin_cites": [ { "page": "716" } ], "opinion_index": 0 }, { "cite": "33 N.C. App. 750", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8552585 ], "year": 1977, "pin_cites": [ { "page": "752" } ], "opinion_index": 0, "case_paths": [ "/nc-app/33/0750-01" ] }, { "cite": "445 S.E.2d 901", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 6, "year": 1994, "pin_cites": [ { "page": "905", "parenthetical": "quoting Acker v. Barnes, 33 N.C. App. 750, 752, 236 S.E.2d 715, 716, disc. review denied, 293 N.C. 360, 238 S.E.2d 149 (1977)" }, { "page": "904" }, { "page": "904" }, { "page": "904", "parenthetical": "emphasis in original" }, { "page": "905" }, { "page": "903-04" } ], "opinion_index": 0 }, { "cite": "337 N.C. 397", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2551903 ], "weight": 3, "year": 1994, "pin_cites": [ { "page": "403", "parenthetical": "quoting Acker v. Barnes, 33 N.C. App. 750, 752, 236 S.E.2d 715, 716, disc. review denied, 293 N.C. 360, 238 S.E.2d 149 (1977)" }, { "page": "403-04" }, { "page": "401-02" } ], "opinion_index": 0, "case_paths": [ "/nc/337/0397-01" ] }, { "cite": "N.C. Gen. Stat. \u00a7 50-13.1", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "year": 1995, "pin_cites": [ { "page": "(a)" } ], "opinion_index": 0 }, { "cite": "461 S.E.2d 745", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1995, "pin_cites": [ { "page": "750" }, { "page": "749" }, { "page": "748-49" }, { "page": "749" }, { "page": "749" } ], "opinion_index": 0 }, { "cite": "341 N.C. 629", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793178 ], "weight": 5, "pin_cites": [ { "page": "635" }, { "page": "634" }, { "page": "632-34" }, { "page": "634-35" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0629-01" ] } ], "analysis": { "cardinality": 708, "char_count": 16234, "ocr_confidence": 0.727, "pagerank": { "raw": 1.1828470186715516e-07, "percentile": 0.5890212132058664 }, "sha256": "98c016b3fcef54a404cac41f2742e7da82b3da3a6af39c5adcc7529bbc244055", "simhash": "1:11d915237aaa68dc", "word_count": 2649 }, "last_updated": "2023-07-14T17:03:33.335576+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHNSON and GREENE concur." ], "parties": [ "JANE & DENNIS SHARP, Petitioners v. TAMULA-JEAN SHARP, Respondent. In Re: Samantha E. Ferrell and Amanda Lynn Sharp" ], "opinions": [ { "text": "ARNOLD, Chief Judge.\nThis case presents the question of whether the recent Supreme Court\u2019s decision in McIntyre v. McIntyre, 341 N.C. 629, 461 S.E.2d 745 (1995) prohibits grandparents from initiating a custody action pursuant to N.C. Gen. Stat. \u00a7 50-13.1(a) (1995) when no custody proceeding is ongoing.\nG.S. \u00a7 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.\nIn McIntyre, the Supreme Court held that G.S. \u00a7 50-13.1(a) does not give grandparents \u201cthe right to sue for visitation when no custody proceeding is ongoing and the minor children\u2019s family is intact.\u201d 341 N.C. at 635, 461 S.E. 2d at 750. The McIntyre Court reviewed several subsections of Chapter 50 that more specifically addressed visitation rights of grandparents and determined that they \u201ccontrol our interpretation of N.C.G.S. \u00a7 50-13.1(a).\u201d 341 N.C. at 634, 461 S.E.2d at 749. The Court found that G.S. \u00a7 50-13.2(bl) allows a trial court to grant visitation rights to grandparents in a custody order; G.S. \u00a7 50-13.5Q) allows grandparents to make a motion in the cause for visitation after the custody of a minor child has been determined; and G.S. \u00a7 50-13.2A allows grandparents of a minor child who has been adopted by a stepparent or a relative of the child to institute an action for visitation. McIntyre, 341 N.C. at 632-34, 461 S.E.2d at 748-49.\nThe McIntyre Court concluded that \u201cit appears that the legislature intended to grant grandparents a right to visitation only in those situations specified in these three statutes.\u201d Id. at 634, 461 S.E.2d at 749. Under these \u201cmore minute and definite\u201d statutes, the Court held, \u201ca grandparent\u2019s right to visitation arises either in the context of an ongoing custody proceeding or where the minor child is in the custody of a stepparent or a relative.\u201d Id.\nDefendant argues that McIntyre- applies equally to custody cases initiated by grandparents and requires that such suits be dismissed for lack of subject matter jurisdiction. We disagree.\nThe McIntyre holding was narrowly limited to suits initiated by grandparents for visitation and does not apply to suits for custody. The McIntyre Court specifically addressed the language of the 1989 amendment to G.S. \u00a7 50-13.1(a) providing that \u201c[u]nless a contrary intent is clear, the word \u2018custody\u2019 shall be deemed to include custody or visitation or both.\u201d The McIntyre Court interpreted the legislature\u2019s intent in amending the statute as follows:\nThe amendment probably was added to provide that in certain contexts \u201ccustody\u201d and \u201cvisitation\u201d are synonymous; however, here it is clear that in the context of grandparents\u2019 rights to visitation, the two words do not.mean the same thing. . . . [T]he legislature did not intend \u201ccustody\u201d and \u201cvisitation\u201d to be interpreted as synonymous in the context of grandparent\u2019s rights.\nMcIntyre, 341 N.C. at 634-35, 461 S.E.2d at 749.\nWe do not believe, therefore, that the Supreme Court intended its narrow holding regarding grandparent\u2019s visitation suits to apply broadly to situations where grandparents bring initial suits for custody where there are allegations that the parents are unfit, or have abandoned or neglected their children.\n\u201cSo long as parents retain lawful custody of their minor children, they retain the prerogative to determine with whom their children shall associate.\u201d Petersen v. Rogers, 337 N.C. 397, 403, 445 S.E.2d 901, 905 (1994) (quoting Acker v. Barnes, 33 N.C. App. 750, 752, 236 S.E.2d 715, 716, disc. review denied, 293 N.C. 360, 238 S.E.2d 149 (1977)). But, this paramount right of parents to custody must yield where there is a finding of unfitness. Id. at 403, 445 S.E.2d at 904. The law presumes that parents \u201cwill perform their obligations to their children\u201d and therefore presumes their right to custody. Id. at 403, 445 S.E.2d at 904 (quoting In re Hughes, 254 N.C. 434, 436-37, 119 S.E.2d 189, 191 (1961)). A parent\u2019s right to custody, however, is not an absolute right. Id. \u201cWhen a parent neglects the welfare and interest of his child, he waives his usual right to custody. \u201d Id. at 403, 445 S.E.2d at 904 (emphasis in original) (quoting In re Hughes, 254 N.C. 434, 436-37, 119 S.E.2d 189, 191).\nIn this case, the grandparents filed suit for custody pursuant to G.S. 50-13.1, which is usually invoked in the context of divorce and separation. However, this provision is intended to cover \u201ca myriad of situations in which custody disputes are involved\u201d and its application is not \u201crestricted to custody disputes involved in separation or divorce.\u201d Oxendine v. Dept. of Social Services, 303 N.C. 699, 706-07, 281 S.E.2d 370, 374-75 (1981).\nAlthough grandparents have the right to bring an initial suit for custody, they must still overcome the \u201cconstitutionally-protected paramount right of parents to custody, care, and control of their children.\u201d Petersen, 337 N.C. at 403-04, 445 S.E.2d at 905. While the best interest of the child standard would apply in custody disputes between two parents, in a dispute between parents and grandparents there must first be a finding that the parent is unfit. Cf. Petersen, 337 N.C. at 401-02, 445 S.E.2d at 903-04.\nThe complaint and motion for temporary custody filed by the grandparents in this case allege that the mother has not provided safe and suitable housing for her children, that she has not contributed to the support of her children, that the children\u2019s father has not been involved with the children, and that the children are at substantial risk of harm. Because the district court dismissed the case for lack of subject matter jurisdiction, there was never a hearing to determine whether the allegations were true, or whether the mother was a fit parent.\nDefendant argues that her parents should be restricted to making allegations of potential harm to their grandchildren only through the procedures provided by the Juvenile Code of Chapter 7A of the General Statutes. N.C. Gen. Stat. \u00a7\u00a7 7A-516 et. seq. (1995). Pursuant to these statutes, any individual who suspects child abuse or neglect must report such allegations to the Department of Social Services. G.S. \u00a7 7A-543. The Department of Social Services is required to investigate the allegations, and if they are substantiated, file a complaint invoking the jurisdiction of the district court for the protection of the juvenile. G.S. \u00a7 7A-544.\nWithout question, social service workers who investigate allegations of abuse or neglect are concerned, dedicated, hardworking people who care deeply about the safety of children. But these individuals are \u201cstrangers\u201d to the family unit under investigation. Moreover, all too often, Social Services lacks adequate resources to protect every child who is at risk of potential harm, and the results are sometimes tragic. Close family members, especially grandparents, are often in the best position to discover and substantiate abuse or neglect, and immediately intervene to protect the children.\nWe do not believe the legislature intended to provide access to our courts, where serious allegations exist, only through the protracted process of a social service investigation, while closing the courthouse door to those who may be the most concerned, members of the child\u2019s extended family. Where the safety of a child is at issue, the doors of our courts must swing wide open.\nThe legislature has spoken to the issue of child custody in three separate chapters, Chapter 50 (addressing primarily divorce and separation proceedings), Chapter 7A of the Juvenile Code (focusing on juvenile delinquency, neglect and abuse), and Chapter 50A (the Uniform Child Custody Jurisdiction Act). N.C. Gen. Stat. \u00a7\u00a7 50 et. seq.-, \u00a7\u00a7 7A-516 et. seq. (1995); \u00a7\u00a7 50A et. seq. (1995 Supp.). A constant theme sounded throughout each of these chapters is the overriding importance of protecting the welfare of children.\nThe principle that our courts should be readily accessible to hear custody issues when the welfare of a child is at issue is clearly expressed in the Uniform Child Custody Jurisdiction Act. G.S. \u00a7 50A et. seq. One of the stated purposes of the Act is to \u201c[d]iscourage continuing controversies over child custody in the interest of greater stability of home environment and of secure family relationships for the child.\u201d G.S. \u00a7 50A-1(4). Keeping this purpose in mind, the district court is authorized to decide child custody matters and has jurisdiction to make a child custody determination by initial decree if it is in the best interest of the child because\n(i) the child and the child\u2019s parents, or the child and at least one contestant, have a significant connection with this State, and (ii) there is available in this State substantial evidence relevant to the child\u2019s present or future care, protection, training, and personal relationships; or\nThe child is physically present in this State and (i) the child has been abandoned or (ii) it is necessary in an emergency to protect the child because the child has been subjected to or threatened with mistreatment or abuse or is otherwise neglected or dependent.\nN.C. Gen. Stat. \u00a7 50A-3(a)(2)(3) (1989) (emphasis added). A contestant in a custody dispute is defined as \u201ca person, including a parent, who claims a right to custody or visitation rights with respect to a child.\u201d N.C. Gen. Stat. \u00a7 50A-2(1) (1989).\nThe grandparents in this case claim they have a right to custody of their grandchildren because they are fit to provide for their care while the children\u2019s parents are unable or unwilling to do so. Given the allegations of this case it is clearly in the best interest of the children that the district court assume jurisdiction, hold a hearing, and make findings of fact with regard to the fitness of the parents to retain custody.\nThe district court is also vested with exclusive and original jurisdiction over any case involving a juvenile who is alleged to be abused or neglected. N.C. Gen. Stat. \u00a7 7A-523 (1995). Our laws make clear that protecting the welfare of children is of such overriding importance that our courts must be readily accessible when the potential for harm exists. See Oxendine, 303 N.C. at 707-08, 281 S.E. 2d. at 375-76 (rejecting the argument that foster parents should be barred from seeking an adoption determination on the theory they lacked standing).\nDefendant contends that grandparents may bring a suit for custody only when there is an ongoing custody proceeding as provided by G.S. \u00a7 50-13.5Q). This procedural provision simply makes clear that grandparents have the right to file suit for custody or visitation during an ongoing proceeding, but it does not restrict their right to bring an initial custody suit pursuant to G.S. \u00a7 50-13.1 when there are allegations that the parent is unfit. In Kerns v. Southern, 100 N.C. App. 664, 397 S.E.2d 651 (1990), this Court rejected the argument that grandparents lack standing to sue for custody of their grandchildren pursuant to G.S. \u00a7 50-13.1.\nWe hold accordingly that G.S. \u00a7 50-13.1(a) grants grandparents the right to bring an initial suit for custody when there are allegations that the child\u2019s parents are unfit. The trial court\u2019s order dismissing plaintiffs\u2019 complaint for lack of subject matter jurisdiction is\nReversed and remanded.\nJudges JOHNSON and GREENE concur.", "type": "majority", "author": "ARNOLD, Chief Judge." } ], "attorneys": [ "Levine & Stewart, by Michael D. Levine and Elizabeth R. Harrison, for plaintiff appellants.", "John M. Bourlon, Ann M. Credle, and Frances P. Solari for defendant appellee." ], "corrections": "", "head_matter": "JANE & DENNIS SHARP, Petitioners v. TAMULA-JEAN SHARP, Respondent. In Re: Samantha E. Ferrell and Amanda Lynn Sharp\nCOA95-1388\n(Filed 5 November 1996)\nDivorce and Separation \u00a7 357 (NCI4th)\u2014 grandparents\u2019 right to bring initial custody action \u2014 allegation of unfit parent required\nThe Supreme Court\u2019s decision of McIntyre v. McIntyre, 341 N.C. 629, prohibits grandparents from initiating suits for visitation when no custody proceeding is ongoing and the minor child\u2019s family is intact, but it does not prohibit grandparents from initiating a custody action pursuant to N.C.G.S. \u00a7 50-131.1(a) when no custody proceeding is ongoing; however, the grandparents must still overcome the constitutionally protected paramount right of parents to the custody, care, and control of their children, and in a dispute between a parent and grandparents, there must be allegations that the parent is unfit.\nAm Jur 2d, Divorce and Separation \u00a7\u00a7 980, 1002.\nAward of custody of child where contest is between child\u2019s father and grandparent. 25 ALR3d 7.\nAward of custody of child where contest is between child\u2019s mother and grandparent. 29 ALR3d 366.\nAward of custody of child where contest is between child\u2019s parents and grandparent. 31 ALR3d 1187.\nAppeal by plaintiffs from order entered 19 October 1995 by Judge William Y. Manson in Durham County District Court. Heard in the Court of Appeals 18 September 1996.\nPlaintiffs are the maternal grandparents of defendant\u2019s two minor children. On 31 July 1995 plaintiffs filed a Complaint and Motion for Temporary Custody in Durham County District Court seeking custody of the minor children. At the time of the complaint, Samantha E. Ferrell was three years old, and Amanda Lynn Sharp was eighteen months old. The children were born out of wedlock and had different fathers.\nIn this initial custody action, plaintiffs alleged that defendant had executed a notarized temporary custody authorization to plaintiffs effective 23 June 1995 until 1 August 1995, pending defendant\u2019s finding suitable housing. Plaintiffs alleged further, inter alia, that defendant had not yet found suitable housing; that she had not provided a safe or stable home for the children; that she had relationships with several men and had moved around in both North Carolina and Pennsylvania; that since the children resided with plaintiffs, she had not contributed to the support of the children; that \u201cthere is a substantial risk of harm to the minor children if in the physical custody of the defendant-mother\u201d; and that she was not emotionally stable enough to care for the children. Plaintiffs asserted that they were fit and proper people to have custody of the minor children, and that it was in the best interest of the minor children to be in their custody.\nAfter an ex parte hearing on 1 August 1995, Judge William Y. Manson found that \u201cthere is a risk of emotional and/or physical harm to the minor children should they be returned to the physical custody of the defendant-mother,\u201d and granted plaintiffs temporary custody pending a hearing in the matter. On 12 October 1995 defendant filed a Motion to Dismiss plaintiffs\u2019 complaint, arguing that it failed to state a claim upon which relief may be granted, pursuant to N.C. Gen. Stat. \u00a7 1A-1, Rule 12(b)(6) (1990).\nAt a hearing on the motion on 19 October 1995, Judge Manson dismissed the complaint for lack of subject matter jurisdiction, based upon the court\u2019s reading of McIntyre v. McIntyre, 341 N.C. 629, 461 S.E.2d 745 (1995). In McIntyre, the Supreme Court held that under N.C. Gen. Stat. \u00a7 5043.1(a) (1995), grandparents may not initiate a visitation action when no custody proceeding is ongoing, and the children\u2019s family is intact. Id. at 635, 461 S.E.2d at 750. Judge Manson ordered that the minor children be returned to the custody of defendant mother.\nPursuant to G.S. \u00a7 1A-1, Rule 60, plaintiffs filed a Motion for Relief from the court\u2019s 19 October 1995 order, based upon an argument that McIntyre, a case addressing only visitation, does not apply in the context of this custody action. At a 7 November 1995 hearing, Judge Manson denied plaintiffs\u2019 Rule 60 motion, finding that custody and visitation are synonymous; that there was no pending custody action; and that the children\u2019s family was intact. Plaintiffs gave notice of appeal to this Court of the 19 October 1995 order.\nSubsequently, this Court granted plaintiffs\u2019 petition for a temporary stay of the 19 October 1995 order, as well a writ of supersedeas, pending the outcome of this appeal (COAP95-486).\nLevine & Stewart, by Michael D. Levine and Elizabeth R. Harrison, for plaintiff appellants.\nJohn M. Bourlon, Ann M. Credle, and Frances P. Solari for defendant appellee." }, "file_name": "0357-01", "first_page_order": 395, "last_page_order": 401 }