{ "id": 11889759, "name": "DAVID R. FISHER AND SHIRLEY L. FISHER, Plaintiffs, v. AUDREY FISHER GAYDON, Defendant", "name_abbreviation": "Fisher v. Gaydon", "decision_date": "1996-11-05", "docket_number": "No. COA96-17", "first_page": "442", "last_page": "446", "citations": [ { "type": "official", "cite": "124 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": "90 ALR3d 222", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "weight": 3, "opinion_index": -1 }, { "cite": "462 S.E.2d 835", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1995, "pin_cites": [ { "parenthetical": "dissenting opinion" } ], "opinion_index": 0 }, { "cite": "120 N.C. App. 480", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 11916332 ], "year": 1995, "pin_cites": [ { "parenthetical": "dissenting opinion" } ], "opinion_index": 0, "case_paths": [ "/nc-app/120/0480-01" ] }, { "cite": "497 U.S. 417", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6216791 ], "weight": 2, "year": 1990, "pin_cites": [ { "page": "417", "parenthetical": "declaring constitutional state statute that permitted minor to obtain abortion after notifying only one parent" }, { "page": "350", "parenthetical": "declaring constitutional state statute that permitted minor to obtain abortion after notifying only one parent" } ], "opinion_index": 0, "case_paths": [ "/us/497/0417-01" ] }, { "cite": "431 U.S. 494", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1688 ], "weight": 2, "year": 1977, "pin_cites": [ { "page": "539", "parenthetical": "declaring unconstitutional statute that did not include grandmother living with her son and grandchildren as a \"family\"" }, { "page": "562", "parenthetical": "declaring unconstitutional statute that did not include grandmother living with her son and grandchildren as a \"family\"" } ], "opinion_index": 0, "case_paths": [ "/us/431/0494-01" ] }, { "cite": "491 U.S. 110", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6211101 ], "weight": 2, "year": 1989, "opinion_index": 0, "case_paths": [ "/us/491/0110-01" ] }, { "cite": "365 S.E.2d 662", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "pin_cites": [ { "page": "663", "parenthetical": "grandparent has standing to seek visitation under N.C. Gen. Stat. \u00a7 50-13.2(bl) only when \"custody of minor children is being litigated\"" } ], "opinion_index": 0 }, { "cite": "89 N.C. App. 351", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522182 ], "year": 1988, "pin_cites": [ { "page": "353", "parenthetical": "grandparent has standing to seek visitation under N.C. Gen. Stat. \u00a7 50-13.2(bl) only when \"custody of minor children is being litigated\"" } ], "opinion_index": 0, "case_paths": [ "/nc-app/89/0351-01" ] }, { "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": "N.C. Gen. Stat. \u00a7 50-13.2", "category": "laws:leg_statute", "reporter": "N.C. Gen. Stat.", "weight": 4, "pin_cites": [ { "page": "(bl)" }, { "page": "(bl)" }, { "page": "(bl)" }, { "page": "(bl)" } ], "opinion_index": 0 }, { "cite": "461 S.E.2d 745", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1995, "pin_cites": [ { "page": "749" }, { "page": "749" } ], "opinion_index": 0 }, { "cite": "341 N.C. 629", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 793178 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "634" }, { "page": "634" } ], "opinion_index": 0, "case_paths": [ "/nc/341/0629-01" ] } ], "analysis": { "cardinality": 395, "char_count": 8017, "ocr_confidence": 0.753, "pagerank": { "raw": 4.003682681257834e-07, "percentile": 0.9059033943677798 }, "sha256": "f4ff0d1db42b516de24c6b2aed0bbdc1aa1f762faecf4227c8c19c4198e6c4ff", "simhash": "1:3bf13754163b30d3", "word_count": 1290 }, "last_updated": "2023-07-14T17:03:33.335576+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge ARNOLD and Judge JOHNSON concur." ], "parties": [ "DAVID R. FISHER AND SHIRLEY L. FISHER, Plaintiffs, v. AUDREY FISHER GAYDON, Defendant" ], "opinions": [ { "text": "GREENE, Judge.\nDavid R. Fisher and Shirley L. Fisher (the grandparents) appeal from the trial court\u2019s order dismissing their 23 February 1995 complaint which sought visitation with their grandchildren.\nThe grandparents are the parents of Audrey Fisher Gaydon (Ms. Gaydon). Ms. Gaydon is the mother and sole custodian of two children, age six and age three. The oldest child, Jessica Michelle Fisher (Jessica), was born during the marriage of Ms. Gaydon to Jeffrey Byron Plyler (Mr. Plyler). During the divorce proceeding between Ms. Gaydon and Mr. Plyler, Mr. Plyler denied his paternity of Jessica. In 1994, a paternity action was filed against the biological father of Jessica, Jessie Eugene Saunders (Mr. Saunders). Mr. Saunders\u2019 parental rights with respect to Jessica were terminated on 15 August 1994.\nLesley Delane Fisher (Lesley) was born 9 August 1993 while Ms. Gaydon was involved with Tommy Jeffrey Kepley (Mr. Kepley). She and Mr. Kepley were not married. On 24 August 1993, Ms. Gaydon filed a complaint against Mr. Kepley seeking an \u201cOrder awarding [her] custody of\u2019 Lesley and an \u201cOrder directing [Mr. Kepley] to pay\u201d'child support to Ms. Gaydon. Ms. Gaydon, on 16 October 1995, \u201cdismissed [this complaint] without prejudice.\u201d\nOn 6 November 1995, the trial court dismissed the grandparents\u2019 complaint seeking visitation finding that the grandparents did not have standing to file the action.\nThe issues are whether (I) a single parent living with her children can constitute an \u201cintact family\u201d within the meaning of McIntyre v. McIntyre, 341 N.C. 629, 634, 461 S.E.2d 745, 749 (1995); and (II) there was an ongoing custody dispute between Ms. Gaydon and the alleged biological father of one of the children entitling the grandparents to seek visitation pursuant to N.C. Gen. Stat. \u00a7 50-13.2(bl).\nI\nIn McIntyre v. McIntyre, our Supreme Court held that grandparents do not have standing, pursuant to N.C. Gen. Stat. \u00a7 50-13.1(a) (1995), to seek visitation with their grandchildren when the \u201cnatural parents have legal custody of their children and are living with them as an intact family.\u201d McIntyre, 341 N.C. at 634, 461 S.E.2d at 749. It follows that under the broad grant of section 50-13.1(a), grandparents have standing to seek visitation with their grandchildren when those children are not living in a McIntyre \u201cintact family.\u201d Additionally, there are three specific statutes that grant grandparents standing to seek visitation with their grandchildren. N.C.G.S. \u00a7 50-13.2(bl) (1995) (when \u201ccustody of minor child\u201d at issue); see Moore v. Moore, 89 N.C. App. 351, 353, 365 S.E.2d 662, 663 (1988) (grandparent has standing to seek visitation under N.C. Gen. Stat. \u00a7 50-13.2(bl) only when \u201ccustody of minor children is being litigated\u201d); N.C.G.S. \u00a7 50-13.5 (1995) (after custody of minor child has been determined); N.C.G.S. \u00a7 50-13.2A (1995) (when child adopted by \u201cstepparent or a relative of child\u201d). The grandparents argue that it is only parents residing with their children in an \u201cintact nuclear family\u201d that are insulated from grandparent visitation actions pursuant to section 50-13.1(a). More specifically, that only those families consisting of a mother, a father, and a child residing in a single residence qualifies as an \u201cintact family\u201d within the meaning of McIntyre. We disagree.\nWe acknowledge that the nuclear family, consisting of married parents living with their children, is the family unit accorded traditional recognition in our society. Unmarried parents living with their children have also been accorded recognition as family units. See Michael v. Gerald D., 491 U.S. 110, 123 n.3, 105 L. Ed. 2d 91, 106 n.3 (1989). The traditional two-parent model, however, is not the determinative factor qualifying a group of persons as a family. See Moore v. East Cleveland, 431 U.S. 494, 539, 52 L. Ed. 2d 531, 562 (1977) (declaring unconstitutional statute that did not include grandmother living with her son and grandchildren as a \u201cfamily\u201d); see also Hodgson v. Minnesota, 497 U.S. 417, 417, 111 L. Ed. 2d 344, 350 (1990) (declaring constitutional state statute that permitted minor to obtain abortion after notifying only one parent).\nWe acknowledge that both parents in McIntyre were living together with their children. We do not, however, read that opinion to hold that an \u201cintact family\u201d exists only when both natural parents are living together with their children. We believe a proper construction of that opinion is that a single parent living with his or her child is an \u201cintact family\u201d within the meaning of McIntyre. See Lambert v. Riddick, 120 N.C. App. 480, 484 n.2, 462 S.E.2d 835, 837 n.2 (1995) (dissenting opinion) (\u201c[i]t would appear that an intact family should include a single parent living with his or her child\u201d).\nIn this case the record reveals that Ms. Gaydon was living with her two children at the time the complaint was filed, had lived with them for at least two years prior to the filing of the action and thus qualifies as an \u201cintact family.\u201d The grandparents thus did not have standing to pursue their visitation action under section 50-13.1(a).\nII\nThe grandparents argue that, even if Ms. Gaydon and her children are treated as an \u201cintact family\u201d and the grandparents\u2019 action is precluded under section 50-13.1(a), N.C. Gen. Stat. \u00a7 50-13.2(bl) is specific in allowing them to proceed with their visitation request. This argument is based on their contention that there was an ongoing custody dispute (with regard to that child) between Ms. Gaydon and the claimed biological father of Lesley. Although the existence of such a dispute would grant standing to the grandparents to seek visitation, in this case there is no evidence of such a dispute. There is nothing in this record showing that the alleged biological father was contesting Ms. Gaydon\u2019s claim of custody. It is only when the custody of a child is \u201cin issue\u201d or \u201cbeing litigated\u201d that the grandparents are entitled to relief pursuant to N.C. Gen. Stat. \u00a7 50-13.2(bl). We therefore reject this argument.\nAffirmed.\nChief Judge ARNOLD and Judge JOHNSON concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Morton, Grigg and Phillips, L.L.P., by James A. Phillips Jr., for plaintiff-appellants.", "Ferguson and Scarbrough, P.A., by Edwin H. Ferguson, Jr., for defendant-appellee." ], "corrections": "", "head_matter": "DAVID R. FISHER AND SHIRLEY L. FISHER, Plaintiffs, v. AUDREY FISHER GAYDON, Defendant\nNo. COA96-17\n(Filed 5 November 1996)\n1. Divorce and Separation \u00a7 383 (NCI4th)\u2014 visitation by grandparents \u2014 standing\u2014intact family\nGrandparents have standing under N.C.G.S. \u00a7 50-13.1(a) to seek visitation with their grandchildren when those children are not living in an \u201cintact family.\u201d\nAm Jur 2d, Divorce and Separation \u00a7 1002.\nGrandparents\u2019 visitation rights. 90 ALR3d 222.\n2. Divorce and Separation \u00a7 383 (NCI4th)\u2014 single parent living with child \u2014 intact family \u2014 grandparent visitation action prohibited\nA single parent living with his or her child constitutes an \u201cintact family\u201d which is insulated from grandparent visitation actions pursuant to N.C.G.S. \u00a7 50-13.1(a). An intact family does not exist only when both natural parents are living together with their children.\nAm Jur 2d, Divorce and Separation \u00a7 1002. Grandparents\u2019 visitation rights. 90 ALR3d 222.\n3. Divorce and Separation \u00a7 383 (NCI4th)\u2014 visitation by grandparents \u2014 failure to show custody being litigated\nGrandparents failed to show that custody of their grandchild was \u201cin issue\u201d or \u201cbeing litigated\u201d so as to give them standing under N.C.G.S. \u00a7 50-13.2(bl) to seek visitation where the child\u2019s mother filed a complaint against the alleged biological father seeking custody and child support but dismissed this complaint without prejudice, and there was no showing that the alleged father was contesting the mother\u2019s claim to custody.\nAm Jur 2d, Divorce and Separation \u00a7 1002.\nGrandparents\u2019 visitation rights. 90 ALR3d 222.\nAppeal by plaintiffs from order entered 6 November 1995 in Cabarrus County District Court by Judge Clarence E. Horton, Jr. Heard in the Court of Appeals 18 September 1996.\nMorton, Grigg and Phillips, L.L.P., by James A. Phillips Jr., for plaintiff-appellants.\nFerguson and Scarbrough, P.A., by Edwin H. Ferguson, Jr., for defendant-appellee." }, "file_name": "0442-01", "first_page_order": 480, "last_page_order": 484 }