{ "id": 2551903, "name": "WILLIAM B. PETERSEN and wife, PATRICIA T. PETERSEN v. PAMELA A. ROGERS and WILLIAM J. ROWE", "name_abbreviation": "Petersen v. Rogers", "decision_date": "1994-07-29", "docket_number": "No. 427PA93", "first_page": "397", "last_page": "406", "citations": [ { "type": "official", "cite": "337 N.C. 397" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "433 S.E.2d 770", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1993, "opinion_index": -1 }, { "cite": "111 N.C. App. 712", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523694 ], "year": 1993, "opinion_index": -1, "case_paths": [ "/nc-app/111/0712-01" ] }, { "cite": "1 ALR4th 1270", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "103 N.C. App. 790", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523636 ], "opinion_index": -1, "case_paths": [ "/nc-app/103/0790-01" ] }, { "cite": "22 ALR4th 971", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "407 S.E.2d 592", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "344 S.E.2d 363", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1986, "pin_cites": [ { "page": "367" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 337", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522905 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "342" } ], "opinion_index": 0, "case_paths": [ "/nc-app/81/0337-01" ] }, { "cite": "365 S.E.2d 662", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "89 N.C. App. 351", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8522182 ], "weight": 2, "year": 1988, "opinion_index": 0, "case_paths": [ "/nc-app/89/0351-01" ] }, { "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": "119 S.E.2d 189", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1961, "pin_cites": [ { "page": "191", "parenthetical": "emphasis added" } ], "opinion_index": 0 }, { "cite": "254 N.C. 434", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626635 ], "year": 1961, "pin_cites": [ { "page": "436-37", "parenthetical": "emphasis added" } ], "opinion_index": 0, "case_paths": [ "/nc/254/0434-01" ] }, { "cite": "69 S.E. 217", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1963, "opinion_index": 0 }, { "cite": "153 N.C. 312", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272306 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/153/0312-01" ] }, { "cite": "164 S.E. 332", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1963, "opinion_index": 0 }, { "cite": "203 N.C. 75", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8598828 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/203/0075-01" ] }, { "cite": "183 S.E. 744", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1963, "opinion_index": 0 }, { "cite": "209 N.C. 489", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2221588 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/209/0489-01" ] }, { "cite": "44 S.E.2d 349", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "228 N.C. 46", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622839 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/228/0046-01" ] }, { "cite": "56 S.E.2d 35", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "231 N.C. 91", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628441 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/231/0091-01" ] }, { "cite": "82 S.E.2d 370", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "240 N.C. 465", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8602337 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/240/0465-01" ] }, { "cite": "84 S.E.2d 917", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "918" } ], "opinion_index": 0 }, { "cite": "241 N.C. 285", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8607745 ], "pin_cites": [ { "page": "287" } ], "opinion_index": 0, "case_paths": [ "/nc/241/0285-01" ] }, { "cite": "142 S.E.2d 592", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 7, "year": 1965, "pin_cites": [ { "page": "595" }, { "page": "715" }, { "page": "596", "parenthetical": "emphasis added" }, { "page": "715-16" }, { "page": "596" } ], "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": "123 L. Ed. 2d 1", "category": "reporters:federal", "reporter": "L. Ed. 2d", "case_ids": [ 6228898 ], "year": 1993, "pin_cites": [ { "page": "18", "parenthetical": "citation omitted" } ], "opinion_index": 0, "case_paths": [ "/us/507/0292-01" ] }, { "cite": "405 U.S. 645", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11723248 ], "weight": 6, "year": 1972, "pin_cites": [ { "page": "651", "parenthetical": "emphasis added" }, { "page": "558-59", "parenthetical": "emphasis added" }, { "page": "648-49" }, { "page": "557", "parenthetical": "citations omitted" }, { "page": "657-58" }, { "page": "562" } ], "opinion_index": 0, "case_paths": [ "/us/405/0645-01" ] }, { "cite": "381 U.S. 479", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6172057 ], "year": 1965, "pin_cites": [ { "page": "496", "parenthetical": "Goldberg, J., concurring" } ], "opinion_index": 0, "case_paths": [ "/us/381/0479-01" ] }, { "cite": "321 U.S. 158", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 302055 ], "year": 1944, "pin_cites": [ { "page": "166" } ], "opinion_index": 0, "case_paths": [ "/us/321/0158-01" ] }, { "cite": "345 U.S. 528", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 372512 ], "year": 1953, "pin_cites": [ { "page": "533" } ], "opinion_index": 0, "case_paths": [ "/us/345/0528-01" ] }, { "cite": "316 U.S. 535", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 368014 ], "weight": 2, "year": 1942, "pin_cites": [ { "page": "541" }, { "page": "541" } ], "opinion_index": 0, "case_paths": [ "/us/316/0535-01" ] }, { "cite": "262 U.S. 390", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6141776 ], "weight": 2, "year": 1923, "pin_cites": [ { "page": "399" }, { "page": "399" } ], "opinion_index": 0, "case_paths": [ "/us/262/0390-01" ] }, { "cite": "439 S.E.2d 150", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "opinion_index": 0 }, { "cite": "335 N.C. 239", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2532551, 2527728, 2528561, 2528125, 2529727 ], "year": 1993, "opinion_index": 0, "case_paths": [ "/nc/335/0239-03", "/nc/335/0239-02", "/nc/335/0239-04", "/nc/335/0239-01", "/nc/335/0239-05" ] }, { "cite": "407 S.E.2d 505", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1991, "pin_cites": [ { "page": "512" } ], "opinion_index": 0 }, { "cite": "329 N.C. 692", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2553149 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/nc/329/0692-01" ] }, { "cite": "433 S.E.2d 770", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1993, "pin_cites": [ { "page": "772" }, { "page": "778" } ], "opinion_index": 0 }, { "cite": "111 N.C. App. 712", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523694 ], "year": 1993, "pin_cites": [ { "page": "713" } ], "opinion_index": 0, "case_paths": [ "/nc-app/111/0712-01" ] }, { "cite": "103 N.C. App. 790", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8523636 ], "opinion_index": 0, "case_paths": [ "/nc-app/103/0790-01" ] } ], "analysis": { "cardinality": 939, "char_count": 21558, "ocr_confidence": 0.736, "pagerank": { "raw": 1.1215869031622947e-06, "percentile": 0.9860586466624116 }, "sha256": "16c08595192583ccf4bc58d41a6f0f394c6343e44bbe5ed0cd0dadea6f1ba3da", "simhash": "1:27e3742264b4845e", "word_count": 3520 }, "last_updated": "2023-07-14T21:06:06.194618+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "WILLIAM B. PETERSEN and wife, PATRICIA T. PETERSEN v. PAMELA A. ROGERS and WILLIAM J. ROWE" ], "opinions": [ { "text": "PARKER, Justice.\nIn In re Adoption of P.E.P., 329 N.C. 692, 407 S.E.2d 505 (1991), this Court voided the adoption of the minor child whose custody is the subject of the instant case. We remanded for dismissal of the adoption proceeding, id. at 704, 407 S.E.2d at 512, subject to N.C.G.S. \u00a7 48-20(c). Placement of the child was originally made by the biological mother, defendant Rogers, with plaintiffs Petersen. Hence, after remand and notice the Orange County Department of Social Services (\u201cDSS\u201d) commenced a juvenile proceeding in September 1991 by filing a petition for custody of the child.\nIn September and October 1991 the trial court entered temporary orders granting custody of the child to DSS, placing him with plaintiffs, and appointing a guardian ad litem. Contemporaneously, plaintiffs filed an action seeking custody of the child. By consent of all parties the temporary orders were continued until trial on the merits of plaintiffs\u2019 action for custody. In the meantime plaintiffs also filed in the juvenile proceeding a motion in the cause requesting custody of the child. Later plaintiffs moved that their civil action and the juvenile proceeding be consolidated, and on 7 November 1991 the trial court granted the motion.\nThe matters were heard beginning 12 November 1991; and on 15 November the court orally ordered return of the child to his biological parents, defendants Rogers and Rowe. By written order entered 11 December 1991 the court denied plaintiffs\u2019 request for custody and visitation.\nPlaintiffs appealed, and the Court of Appeals limited its discussion to the issue of \u201cthe permissible extent of inquiry into religious practices and beliefs of the parties in a child custody proceeding.\u201d Petersen v. Rogers, 111 N.C. App. 712, 713, 433 S.E.2d 770, 772 (1993). The court found that plaintiffs\u2019 right to freedom of religion, as guaranteed by the federal and state constitutions, was violated by the trial court\u2019s extensive inquiry into plaintiffs\u2019 religion and remanded \u201cfor proceedings free from unwarranted religious inquisition into the beliefs of the parties.\u201d Id. at 725, 433 S.E.2d at 778.\nDefendants appealed to this Court, contending the judgment of the Court of Appeals involved a substantial question arising under the First Amendment of the United States Constitution and Article I, \u00a7 13, of the North Carolina Constitution in that it purported \u201cto protect the rights of religious freedom of the Plaintiffs/Appellees, yet ignores that the religious beliefs and practices of the Plaintiffs/ Appellees are extremely different from the beliefs of the biological parents, the Defendants/Appellants.\u201d Defendants\u2019 second contention was that the judgment involved a substantial question arising under the First and Fourteenth Amendments and Article I, \u00a7\u00a7 1 and 19, of the North Carolina Constitution in that it deprived defendants of their right to custody and control of their child, including control over his associations. Defendants argued that this issue, raised in the trial tribunal and in their brief in the Court of Appeals, was erroneously ignored by that court. Plaintiffs moved pursuant to Rule 14(b)(2) to dismiss the appeal for lack of a substantial constitutional question, but this Court denied the motion. Petersen v. Rogers, 335 N.C. 239, 439 S.E.2d 150 (1993). This Court also granted defendants\u2019 petition for discretionary review, id., which set forth the same contentions as the notice of appeal.\nFor reasons which follow, we conclude that defendants\u2019 constitutionally-protected paramount right to custody, care, and control of their child, including control over his associations, outweighed plaintiffs\u2019 interests, including their right to freedom of religion. Therefore, inquiry into plaintiffs\u2019 religious beliefs, if error, was harmless. Consequently, we reverse the decision of the Court of Appeals.\nDiscussing protection of the family unit, the United States Supreme Court has said:\nThe rights to conceive and to raise one\u2019s children have been deemed \u201cessential,\u201d Meyer v. Nebraska, 262 U.S. 390, 399 (1923), \u201cbasic civil rights of man,\u201d Skinner v. Oklahoma, 316 U.S. 535, 541 (1942), and \u201c[r]ights far more precious . . . than property rights,\u201d May v. Anderson, 345 U.S. 528, 533 (1953). \u201cJi is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.\u201d Prince v. Massachusetts, 321 U.S. 158, 166 (1944). The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, Meyer v. Nebraska, supra, at 399, the Equal Protection Clause of the Fourteenth Amendment, Skinner v. Oklahoma, supra, at 541, and the Ninth Amendment, Griswold v. Connecticut, 381 U.S. 479, 496 (1965) (Goldberg, J., concurring).\nStanley v. Illinois, 405 U.S. 645, 651, 31 L. Ed. 2d 551, 558-59 (1972) (emphasis added). In Stanley, the Court found repugnant to the Due Process and Equal Protection Clauses a state\u2019s dependency proceeding in which putative fathers were presumed unfit to raise their children. The Court recognized that under Illinois law\nlegal custody is not parenthood or adoption. A person appointed guardian in an action for custody and control is subject to removal at any time without such cause as must be shown in a neglect proceeding against a parent. He may not take the children out of the jurisdiction without the court\u2019s approval. He may be required to report to the court as to his disposition of the children\u2019s affairs. Obviously then, even if [the putative father] were a mere step away from \u201ccustody and control,\u201d to give an unwed father only \u201ccustody and control\u201d would still be to leave him seriously prejudiced by reason of his status.\nId. at 648-49, 31 L. Ed. 2d at 557 (citations omitted). The Court concluded that the interest of the State in caring for children of a putative father is de minimis if the father \u201cis shown to be a fit father.\u201d Id. at 657-58, 31 L. Ed. 2d at 562.\nRecently the Court revisited the question of parental rights, stating as follows:\n\u201cThe best interests of the child,\u201d a venerable phrase familiar from divorce proceedings, is a proper and feasible criterion for making the decision as to which of two parents will be accorded custody. But it is not traditionally the sole criterion \u2014 much less the sole constitutional criterion \u2014 for other, less narrowly channeled judgments involving children, where their interests conflict in varying degrees with the interests of others. Even if it were shown, for example, that a particular couple desirous of adopting a child would best provide for the child\u2019s welfare, the child would nonetheless not be removed from the custody of its parents so long as they were providing for the child adequately. Similarly, \u201cthe best interests of the child\u201d is not the legal standard that governs parents\u2019 or guardians\u2019 exercise of their custody: so long as certain minimum requirements of child care are met, the interests of the child may be subordinated to the interests of other children, or indeed even to the interests of the parents or guardians themselves.\nReno v. Flores, - U.S. -, -, 123 L. Ed. 2d 1, 18 (1993) (citation omitted).\nNorth Carolina\u2019s recognition of the paramount right of parents to custody, care, and nurture of their children antedates the constitutional protections set forth in Stanley. In cases involving conflict over custody this Court has repeatedly emphasized the strength and importance of the right. In Jolly v. Queen, 264 N.C. 711, 142 S.E.2d 592 (1965), a mother and putative father disputed who should have custody of their child. The trial court found (i) both parties and their spouses were fit and suitable persons to have care and custody of the child and (ii) it was in the child\u2019s best interest that custody be awarded to his putative father for the nine months of the school year and to his mother for the other three months, with visitation privileges for each parent during the other\u2019s custody interval. On appeal, speaking for a unanimous court, Justice Sharp said as follows:\n\u201cIt is well settled law in this State, and it seems to be universally so held, that the mother of an illegitimate child is its natural guardian, and, as such, has the legal right to its custody, care and control, if a suitable person, even though others may offer more material advantages in life for the child.\u201d Browning v. Humphrey, 241 N.C. 285, 287, 84 S.E.2d 917, 918; accord, Wall v. Hardee, 240 N.C. 465, 82 S.E.2d 370; In re Cranford, 231 N.C. 91, 56 S.E.2d 35; In re McGraw, 228 N.C. 46, 44 S.E.2d 349; In re Foster, 209 N.C. 489, 183 S.E. 744; In re Shelton, 203 N.C. 75, 164 S.E. 332; In re Jones, 153 N.C. 312, 69 S.E. 217; 10 Am. Jur. 2d, Bastards \u00a7 60 (1963); 3 Lee, North Carolina Family Law \u00a7 224 (3d ed. 1963).\nId. at 713-14, 142 S.E.2d at 595. Justice Sharp also stated that having found the mother fit, the trial court could not award custody to the putative father. Further, \u201c[t]he mother being of good character and able to provide for her child, the finding of the judge that it is in the best interest of the child that he remain in the home of respondents for nine months during the year is not controlling.\" Id. at 715, 142 S.E.2d at 596 (emphasis added). The Court\u2019s examination of the paramount custody right of the mother of an illegitimate child illustrates the strength of the right of natural parents as against others: Although a trial court \u201cmight find it to be in the best interest of a legitimate child of poor but honest, industrious parents\u201d that his custody be given to a more affluent person, such a finding \u201ccould not confer a right as against such parents who had not abandoned their child, even though they had permitted him to spend much time\u201d with the more affluent person. Id. Instead, \u201cparents\u2019 paramount right to custody would yield only to a finding that they were unfit custodians because of bad character or other, special circumstances. So it is with the paramount right of an illegitimate\u2019s mother.\u201d Id. at 715-16, 142 S.E.2d at 596.\nIn a case decided before Jolly, the Court discussed the common-law basis for parents\u2019 paramount right to custody: \u201cBecause the law presumes parents will perform their obligations to their children, it presumes their prior right to custody, but this is not an absolute right. The welfare of the child is the crucial test. When a parent neglects the welfare and interest of his child, he waives his usual right to custody.\u201d In re Hughes, 254 N.C. 434, 436-37, 119 S.E.2d 189, 191 (1961) (emphasis added).\nSimilarly, the Court of Appeals, after Stanley, recognized that parents\u2019 paramount right to custody includes the right to control their children\u2019s associations: \u201cSo long as parents retain lawful custody of their minor children, they retain the prerogative to determine with whom their children shall associate.\u201d Acker v. Barnes, 33 N.C. App. 750, 752, 236 S.E.2d 715, 716, disc. rev. denied, 293 N.C. 360, 238 S.E.2d 149 (1977); accord Moore v. Moore, 89 N.C. App. 351, 365 S.E.2d 662 (1988).\nCiting Best v. Best, 81 N.C. App. 337, 344 S.E.2d 363 (1986), plaintiffs argue that \u201cNorth Carolina recognizes the right of a minor child to be placed in the custody of the person or entity which will meet that child\u2019s best interests.\u201d Further, plaintiffs argue that as to parents\u2019 custodial rights, our law recognizes no more than a \u201chigher evidentiary standard\u201d which must apply in custody disputes between parents and those who are not natural parents; but \u201cthe welfare of the child is paramount to all common law preferential rights of the parents.\u201d In light of Flores, Stanley, and the principles enunciated in Jolly and Hughes, we explicitly reject these arguments. We hold that 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. Language to the contrary in Best v. Best, 81 N.C. App. at 342, 344 S.E.2d at 367, is hereby expressly disavowed.\nIn the instant case, the trial court\u2019s findings included the following:\n11. [Defendant] Pamela Rogers has since November, 1988 consistently and continuously attempted to set aside her consent to give up her child, for adoption.\n12. [Defendant] William Rowe is a resident of Michigan who has never been a resident nor a visitor to North Carolina, except to answer these court proceedings which attempted to set aside his parental rights. William Rowe has attempted to legitimate his son on several occasions and has never denied the paternity of his child. [Defendant] Pamela Rogers, the mother of this child, has affirmed that William Rowe is the father of this child. William Rowe, nevertheless, subjected himself to a blood test and the blood grouping reflected that the probability that William Rowe is the father of [the child] is 99.92% more likely than an unrelated male in the United States. William Rowe is the biological father of [this child].\n23. The Michigan home study reflects that [defendants] Rogers and Rowe are fit and appropriate persons to have custody of their son [name omitted].\n25. [Name omitted] is a child who is not eligible for adoption; the rights of his parents have not been terminated; and his parents have not consented to any such adoption.\n(Emphasis added.)\nThere was no finding that defendants had neglected their child\u2019s welfare in any way. Based on the record, defendants\u2019 paramount right to custody of their minor child had to prevail; and the trial court could not award custody to anyone other than defendants. Since as a matter of law the trial court could not award custody to plaintiffs, inquiry into their fitness for purposes of custody was irrelevant. Therefore, error, if any, in the extent of inquiry into this issue was harmless.\nDefendants also contend plaintiffs have no right to visitation or to file an action requesting visitation under N.C.G.S. \u00a7 50-13.1. We agree.\nThe statute provides as follows:\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.G.S. \u00a7 50-13.1(a) (Supp. 1993).\nThe Court of Appeals considered the application of this statute in Ray v. Ray, 103 N.C. App. 790, 407 S.E.2d 592 (1991). In Ray, plaintiff, the paternal step-grandmother of a minor child, sought visitation and named as defendants the child\u2019s biological parents, who were married but living apart. The trial court granted defendants\u2019 motion to dismiss the complaint pursuant to Rule 12(b)(6). The trial court\u2019s order included the following reasoning:\nThe Court has considered the argument of counsel for plaintiff that allowing an amendment to the pleadings to claim a specific \u201cright\u201d to visitation under 50-13.1 would remedy any defect in her pleadings; and specifically rejects plaintiff\u2019s argument that the legislature intended to overturn the general case law which asserts that, with specific statutory exceptions, the parents with lawful custody of a child have the prerogative of determining with whom their children shall associate (Moore v. Moore, 89 N.C. App. 351).\nThe legislature has carved out specific exceptions for both \u201cbiological grandparents\u201d and \u201cadoptive grandparents,\u201d and has made no other exceptions for non-biological, non-adoptive \u201cstep-grandparents,\u201d particularly where the relationship by affinity has terminated by divorce or, as in this case, by death of the biological relative on whom the affinity depends.\nNor is the Court persuaded, as counsel for plaintiff argues, that G.S. 50-13.1 was ever intended by the legislature to confer upon strangers the right to bring custody or visitation actions against the parents of children unrelated to [those strangers]. Such an interpretation would nullify any need for G.S. 50-13.2(bl) and 50-13.2A, neither of which [has] been repealed.\nId. at 792, 407 S.E.2d at 593.\nThe Court of Appeals agreed with defendants\u2019 argument that North Carolina law grants to parents who have lawful custody of their children the prerogative of determining with whom their children associate. However, the court held that by changing N.C.G.S. \u00a7 50-13.1(a) so that it included the right to bring an action for visitation, the legislature changed the law of Acker v. Barnes and Moore v. Moore. The court stated, \u201cWe note that this subject may involve constitutional issues relating to the substantive due process interests in the care and custody of one\u2019s children. As neither party has brought the issue before this Court, we do not address it.\u201d Id. at 793, 407 S.E.2d at 593-94. Concurring separately, Judge Eagles emphasized \u201cthat the amended version of G.S. 50-13.1 undermines the traditional prerogative of parents to determine with whom their minor children associate. In my view, the Legislature did not intend this result when it amended the statute.\u201d Id. at 794, 407 S.E.2d at 594.\nWe agree with the reasoning of the trial court in Ray that N.C.G.S. \u00a7 50-13.1 was not intended to confer upon strangers the right to bring custody or visitation actions against parents of children unrelated to such strangers. Such a right would conflict with the constitutionally-protected paramount right of parents to custody, care, and control of their children. For these reasons, we expressly disavow language in Ray indicating that the statute changed the paramount right of parents.\nIn the instant case, the trial court\u2019s order awarding custody included a conclusion that there should be no visitation with plaintiffs \u201cexcept as may be consented to and approved by [defendants].\u201d Since this conclusion manifestly accords with law protecting parents\u2019 constitutionally paramount right to custody, care, and control of their children, the trial court did not err in reaching it.\nAccordingly, the Court of Appeals\u2019 decision is reversed and this case remanded to that court for further remand to the District Court, Orange County, for reinstatement of the trial court\u2019s order.\nREVERSED.\n. The statute provides as follows:\nUpon dismissal of an adoption proceeding, the custody of the child shall revert to the county director of social services or licensed child-placing agency having custody immediately before the filing of the petition. If the placement of the child was made by its biological parents directly with the adoptive parents, the director of social services of the county in which the petition was filed shall be notified by the court of such dismissal and said director of social services shall be responsible for taking appropriate action for the protection of the child.\nN.C.G.S. \u00a7 48-20(c) (1991).", "type": "majority", "author": "PARKER, Justice." } ], "attorneys": [ "Hassell & Baker, RA., by Robert A. Hassell, for plaintiff - appellees.", "Levine, Stewart & Davis, by Donna Ambler Davis, for defendant-appellants." ], "corrections": "", "head_matter": "WILLIAM B. PETERSEN and wife, PATRICIA T. PETERSEN v. PAMELA A. ROGERS and WILLIAM J. ROWE\nNo. 427PA93\n(Filed 29 July 1994)\n1. Parent and Child \u00a7 24 (NCI4th); Constitutional Law \u00a7 119 (NCI4th)\u2014 adoption \u2014 consent revoked \u2014 inquiry into religious beliefs \u2014 rights of natural parents\nThe trial court correctly ordered an adopted child returned to its biological parents where the trial court found that the biological mother had consistently and continuously attempted to set aside her consent; the male defendant is the biological father and had attempted to legitimate his son on several occasions; a Michigan home study reflects that defendants are fit and appropriate persons to have custody of their son; the son was not eligible for adoption and the rights of his parents have not been terminated; and there was no finding that defendants had neglected their child\u2019s welfare in any way. Absent a finding that parents are unfit or have neglected the welfare of their children, the constitutionally protected paramount right of parents to custody, care, and control of their children must prevail and inquiry into plaintiffs\u2019 religious beliefs, if error, was harmless.\nAm Jur 2d, Parent and Child \u00a7\u00a7 26, 28.\nReligion as factor in child custody and visitation cases. 22 ALR4th 971.\n2. Parent and Child \u00a7 28 (NCI4th)\u2014 adoption revoked \u2014 right to visitation\nThe trial court did not err when revoking an adoption and awarding custody of the child to the biological parents by including a conclusion that there should be no visitation with plaintiffs (the adoptive parents) except as may be consented to and approved by defendants. N.C.G.S. \u00a7 50-13.1 was not intended to confer upon strangers the right to bring custody or visitation actions against parents of children unrelated to such strangers; such a right would conflict with the constitutionally-protected paramount right of parents to custody, care, and control of their children. Language in Ray v. Ray, 103 N.C. App. 790, indicating that the statute changed the paramount right of parents was expressly disavowed.\nAm Jur 2d, Parent and Child \u00a7 36.\nVisitation rights of persons other than natural parents or grandparents. 1 ALR4th 1270.\nAppeal as of right pursuant to N.C.G.S. \u00a7 7A-30(1) from a unanimous decision of the Court of Appeals, 111 N.C. App. 712, 433 S.E.2d 770 (1993), reversing an order of custody entered by Hunt (Love), J., on 11 December 1991 in District Court, Orange County. Heard in the Supreme Court 12 April 1994.\nHassell & Baker, RA., by Robert A. Hassell, for plaintiff - appellees.\nLevine, Stewart & Davis, by Donna Ambler Davis, for defendant-appellants." }, "file_name": "0397-01", "first_page_order": 425, "last_page_order": 434 }