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Mecklenburg County Child Custody Case Remanded on Suspension of Visitation Issue

Charlotte Child Custody Law Firm.jpgA case out of the Mecklenburg County Family Court (Charlotte, North Carolina) denominated Maxwell v. Maxwell was recently considered by the North Carolina Court of Appeals. After being held in contempt, ordered to undergo a psychiatric evaluation and having his visitation suspended, Father entered notice of appeal. He appealed the Mecklenburg County Family Court’s order on three grounds: First, he contended that the court erred in holding him in civil contempt of court for failing to pay child support. Second, he contended that the Court erred in ordering him to undergo a psychiatric evaluation. Finally, he contended the court erred in suspending his visitation. At issue in this case was whether the Mecklenburg County Family Court’s order amounted to a temporary order on child custody or whether it was a permanent order on child custody. We will only consider the second two issues in this post.

After taking evidence, which included evidence of physical and verbal abuse by the Father, the Charlotte family court judge ordered, ex mero moto (on its own motion), that the Father must go through a psychiatric evaluation before he may have visitation with the minor children (who happen to be quadruplets). In essence, the father contended that the Court erred in requiring him to undergo a psychiatric evaluation without proper notice of the hearing and an opportunity to be heard. The North Carolina Court of Appeals disagreed noting that the Court has broad discretion in the determination of the best interests of minor children. Consistent with this broad discretion, the trial Court has the authority to order, on its own motion, that a party undergo a psychiatric evaluation.

The last issue raised by appellant was whether the Court made adequate findings of fact to support its suspension of father’s visitation with the minor children. Interestingly, there was some issue here with respect to whether the Mecklenburg County Family Court Judge intended to enter a temporary child custody order or whether it intended to enter a permanent child custody order. The issue raised by Father was that the Court did not find that either (1) the Father was unfit to have visitation with the minor children; or (2) that it was in the minor children’s best interest that Father not have visitation with them. Indeed, these are the requirements set forth in North Carolina Gen. Stat. § 50-13.5(i).

As mentioned previously, at issue is whether this was a temporary child custody order or a permanent child custody order. The reason being that a temporary order would ordinarily not be immediately appealable whereas a permanent order would be immediately appealable. The North Carolina Court of Appeals treated the order at issue as permanent, and therefore immediately appealable, despite the fact that it was silent with respect to whether it was a temporary child custody order or a permanent child custody order. Importantly, the North Carolina Court of Appeals noted that the order at issue in the case at bar was silent with respect to a review date.


Ultimately, the North Carolina Court of Appeals remanded the case to the Mecklenburg County Family Court in Charlotte, North Carolina for further findings of fact pertaining to whether the father was unfit to act as a parent to the minor child or whether it was in the best interests of the minor children for father not to have visitation with them as required by North Carolina General Statutes § 50-15.5(i).

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