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Adoption and Child Custody Ruling Issued by North Carolina Court of Appeals

Adoption.jpgIn the adoption and child custody case of Best v. Gallup, the North Carolina Court of Appeals examined a case involving both an adoption and nonparent child custody. In the adoption and child custody case at bar, mother and “father” were romantically involved and intended to be married. For approximately six (6) years, mother and “father” had custody of, and raised together, the minor child. Prior to marriage, mother adopted the minor child while “father” was in Iraq working. The intention of the parties was for “father” to adopt the minor child after the “father” returned from a job in Iraq and the parties were married. Before “father” returned from Iraq, before the parties were married and before the “father” could formally adopt the minor child, mother broke off the relationship with “father.” “Father” filed a civil lawsuit for child custody against mother.

The trial court dismissed “father’s” action for child custody. The trial court found that it would not be in the best interest of the minor child for said minor child to be cut off from “father” but that mother had not acted contrary to her paramount parental status. The trial court did not actually specify the exact reason for the dismissal of “father’s” child custody action. “Father” appealed and mother did not file any brief in opposition.

The North Carolina Court of Appeals reversed the trial court’s dismissal and remanded the case back to the trial court for the establishment of a child custody and visitation schedule. The North Carolina Court of Appeals, based on the actual findings of fact by the trial court, reversed the trial court’s determination that mother had not acted contrary to her constitutionally protected status as parent. Rather, the North Carolina Court of Appeals found that mother had, in fact, acted contrary to her constitutionally protected status as parent. The North Carolina Court of Appeals found as such based on two particular points. First, it found it compelling that mother had allowed “father” to make decisions relating to the minor child. Second, the North Carolina Court of Appeals noted that mother had brought another person (“father”) into the household for an indefinite period of time with no expectation of that relationship ending. Ultimately, the North Carolina Court of Appeals ruled that “father” was entitled to child custody and/or visitation because mother had acted contrary to her constitutionally protected status as parent and it would be in the minor child’s best interest for “father” to have parenting time.


This case illustrates how complex child custody litigation can be in North Carolina. Here, the trial court appeared to be under a misapprehension of the law with respect to whether a nonparent may seek child custody and or visitation with a minor child. The North Carolina Court of Appeals went out of its way to quote the actual statements of the Judge from the bench at the time of the hearing. In essence, the trial court had a fundamental misunderstanding of the law in North Carolina with respect to nonparent child custody and acts contrary to the paramount parental status. This case is an excellent illustration of why it is important to retain legal counsel who is well versed in the complex nuances of North Carolina family law.

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