Roybal v. Raulli ( 2019 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA18-1085
Filed: 16 July 2019
Orange County, No. 14 CVD 1289
MATTHEW JASON ROYBAL, Plaintiff
v.
CHRISTY ANNE RAULLI, Defendant.
Appeal by plaintiff from order entered 8 October 2018 by Judge Samantha
Cabe in District Court, Orange County. Heard in the Court of Appeals 8 May 2019.
Browner Law, PLLC, by Jeremy Todd Browner, for plaintiff-appellant.
Ellis Family Law, P.L.L.C., by Autumn D. Osbourne, for defendant-appellee.
STROUD, Judge.
Matthew Roybal appeals from an order addressing several issues of first
impression for this Court arising from the Uniform Deployed Parents Custody and
Visitation Act (“UDPCVA”). N.C. Gen. Stat. §§ 50A-350-396 (2017). Father’s motion
and the trial court’s order dealt with all three aspects of custodial responsibility
recognized by the UDPCVA: caretaking authority, decision-making authority, and
limited contact. N.C. Gen. Stat. §§ 50A-374-375. The applicable standards for each
aspect of custodial responsibility are slightly different, and here, separate prior
orders addressed custody for each of the parties’ two children, Elizabeth and Jay.1
1 Pseudonyms will be used for the privacy of the minors involved.
ROYBAL V. RAULLI
Opinion of the Court
Because both children’s previous custody orders addressed caretaking authority and
decision-making authority in the event of Father’s deployment, and the trial court
did not find that the circumstances required modification, the trial court did not
abuse its discretion in denying Father’s motion as to these two aspects of custodial
responsibility. But the prior orders did not address “limited contact,” which is a form
of visitation specifically authorized under the UDPCVA. N.C. Gen Stat. § 50A-375.
The statute requires limited contact to be granted to a “nonparent” with a “close and
substantial relationship” with a child unless limited contact is contrary to the child’s
best interest. Id. The trial court correctly granted limited contact to Father’s wife,
Stepmother, as to Elizabeth, but erred in its interpretation of Jay’s prior order and
North Carolina General Statute § 50A-373(1) as preventing the court from granting
limited contact as to Jay. We therefore affirm the trial’s court order in part but
remand for the trial court to grant limited contact with Jay to Stepmother unless the
court determines that she does not have a “close and substantial relationship” with
Jay or that limited contact would be contrary to his best interests. Id. We also
remand for the trial court to recognize Stepmother as a party to this action “until the
grant of limited contact is terminated.” N.C. Gen. Stat. § 50A-375(b).
I. Background
Mother and Father (hereinafter “parents”) never married but while they were
residing together, Elizabeth was born in 2012, and after their relationship ended, Jay
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Opinion of the Court
was born in 2016. In September of 2014, Plaintiff-Father filed a verified complaint
against Defendant-Mother for joint and legal custody of their daughter, Elizabeth.
On 21 November 2014, Mother answered Father’s verified complaint and requested
custody and child support.
On 29 June 2016, the trial court entered into a consent order for joint legal and
physical custody of Elizabeth (“Elizabeth’s Consent Order”). When Elizabeth’s
Consent Order was entered, Father was residing with his then fiancé, Victoria,
(“Stepmother”) and her daughter, age seven, from a previous relationship. Elizabeth
had already been “introduced as a member of [Father’s] household,”2 and Mother was
seven months pregnant with Jay. Elizabeth’s order has extensive and detailed
provisions for shared custody and decision-making and has these provisions relevant
to this case:
2. Time-Sharing (Physical Custody). The parties
shall share the physical custody of the minor child as set
forth herein.
(a) Regular Weekly Schedule: Except for the
periods of Vacation, Holidays and the Plaintiff’s Military
Duty as set forth below and except for what may otherwise
be mutually agreed upon between the parties the minor
child shall be in the physical custody of the Plaintiff
beginning at 9:30 AM on Sunday morning and continuing
until the beginning of school on Tuesday morning [two (2)
days later] or until 9:30 AM on Tuesday morning if there is
no school. The minor child shall be in the physical custody
2 The parents developed the terms of Elizabeth’s Consent Order in mediation and it includes “limited
findings of fact” by consent. The facts regarding circumstances at the time of entry of Elizabeth’s
Consent Order come from findings of fact in the 2016 order regarding Jay’s custody.
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Opinion of the Court
of the Defendant beginning with her drop off at school on
Tuesday morning or from 9:30 AM on Tuesday if there is
no school until she is dropped off for the beginning of school
on Thursday morning [two (2) days later] or until 9:30 AM
on Thursday morning if there is no school. The minor child
shall be in the Plaintiff’s physical custody from the time
she is dropped off for school on Thursday morning or from
9:30 AM on Thursday morning if there is no school until
the time she is dropped off for school on Friday or until 9:30
AM on Friday if there is no school. The minor child shall
be in the Defendant’s physical custody from Friday at the
beginning of school or from 9:30 AM on Friday if there is
no school until Sunday morning at 9:30 AM. The net result
of this schedule is that the Plaintiff has physical custody of
the minor child for three (3) overnights (Sunday, Monday
and Thursday) and the Defendant has physical custody of
the minor child for four (4) overnights (Tuesday,
Wednesday, Friday and Saturday) with the minor child
each week, sharing her on a 2-2-1-2 schedule.
(i) Military Duty: In the event that the Plaintiff
has an USAR Drill Weekend (also known as a “Battle
Assembly”), he shall pick up the minor child by 6:00 PM on
Sunday to begin his physical custodial time. If the Plaintiff
is unable to pick up the child by 6:00 PM, the Defendant
shall retain physical custody of the child until the
beginning of school on Monday morning or until 9:30 AM
on Monday morning if there is no school, or as may be
otherwise mutually agreed to between the parties.
....
5. “Temporary Military Duty” or “Active Duty”.
To the extent that any Temporary Military Duty would
impact the Regular Weekly Schedule set forth above, the
parties shall return to mediation to determine a new
schedule, as appropriate at that time. Likewise, in the
event that the parties cannot create a mutually agreeable
schedule during any periods of Active Duty, the parties
shall return to mediation for assistance in reaching a new
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Opinion of the Court
schedule. Until such time as a new Order or agreement is
in place, the minor child shall remain in Defendant’s care
if the Plaintiff is unavailable to exercise his time with the
minor child.
6. Legal Custody. The parties shall share jointly
in the decisions in reference to the major areas of
parenting, as often as possible, and specifically:
....
(xi) The parties further stipulate and agree
that should Plaintiff be deployed or otherwise unavailable
due to his military status and therefore he be [sic] unable
to respond to Defendant surrounding a matter that would
generally fall under legal custody as described herein,
Defendant shall be entitled to solely make said decision
after waiting forty eight (48) hours to hear back from
Plaintiff short of an emergency.
After the entry of Elizabeth’s Consent Order, Jay was born in August 2016. In
September 2016, Father filed a motion to modify custody seeking modification of
Elizabeth’s Consent Order and determination of Jay’s custody. On 11 July 2017, the
trial court entered an order regarding Jay’s custody, granting the parents joint legal
and physical custody on a temporary basis, with a final order to be determined later.3
The trial court denied Father’s motion to modify Elizabeth’s Consent Order, finding
no substantial change of circumstances since entry of the order. When Jay’s order
was entered, Father had married Stepmother, and she was pregnant. Jay was eight
3The order provides that a hearing on permanent custody for Jay “shall not be scheduled before
December 2017.” Jay’s order does not appear to be a consent order, but prior to the Conclusions of
Law, the order states: “Based upon the consent of the parties and the foregoing Limited Findings of
Fact, the Court makes the following: CONCLUSIONS OF LAW.”
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Opinion of the Court
months old at the time of the hearing in April 2017; he was still breastfeeding and
not yet sleeping through the night. The trial court granted joint legal and physical
custody of Jay to the parents and set forth a detailed schedule for physical custody
and provisions regarding decision-making. As relevant to the issues in this case, the
order includes these provisions regarding military service:
g. Should Plaintiff be unable to exercise his custodial time
described herein due to travel for work or any form of
military duty, including but not limited to: temporary
military duty, active duty or deployment, the minor
child shall remain in Defendant’s custody.
h. The parties shall share jointly in the decisions in
reference to the major areas of parenting, as often as
possible, and specifically:
i. The parties each have the right to make the day-to-
day decisions for the minor child. In matters of more
consequence with long-lasting significance, these
issues will be discussed between the parties in an
effort to resolve them by mutual agreement. In the
event the parties cannot agree, they shall seek
assistance from a relevant professional or return to
mediation.
ii. The parties shall each provide one another with a
current address, email address and telephone
number and shall provide notice of any change in
this information at least 48 hours prior to such
change.
On 21 May 2018, Father notified Mother via email of his upcoming deployment.
Mother and Father discussed attending mediation but could not schedule mediation
in time to resolve their custody issues before Father’s departure. Father’s official
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Opinion of the Court
orders to report for “active duty as a member of your Reserve Component Unit” of the
United States Army were issued on 2 August 2018.4 He was required to report first
to Fort Hood, Texas, on 20 August 2018 for mandatory training prior to deployment,
and his mobilization would begin 27 August 2018 and last 400 days. The purpose of
his activation was “in support of OPERATION ENDURING FREEDOM- HORN OF
AFRICA.” The Orders did not allow dependents to accompany Father.
On 13 August 2018, Father filed a “Motion to Grant Caretaking Authority to
Nonparent Due to Deployed Parent” under the UPDCVA with the Orange County
District Court. He alleged Stepmother and the children’s stepsister and half brother
have close and substantial relationships with Elizabeth and Jay and that Stepmother
should be granted “caretaking and decision-making authority, or in the alternative,
limited contact” with both children.
Despite Father’s deployment date of 20 August 2018, the trial court set the
hearing for 22 October 2018. Father filed a petition for a writ of mandamus with this
Court to order the trial court to expedite the hearing as required under North
Carolina General Statute § 50A-371.5 On 24 September 2018, this Court granted
4The United States Army Reserves is included in the definition of “Uniformed service.” N.C. Gen.
Stat. § 50A-351(18).
5 The UDPCVA requires the trial court to conduct an expedited hearing. N.C. Gen. Stat. § 50A-371.
We understand that the trial court’s docket is normally set far in advance and is more than full, but
because military deployments often require parents to report for duty very soon, the statute requires
this type of hearing to be given priority.
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Opinion of the Court
Father’s petition and ordered the trial court to hold a hearing by 8 October 2018. On
28 September 2018, the trial court held a hearing on Father’s motion and entered an
order on 8 October 2018 denying the motion as to Jay and granting it in part by
ordering limited contact only for Elizabeth. Father timely appealed.
II. Interlocutory Appeal
The order on appeal is an interlocutory order, since it does not resolve all
pending claims and is a temporary order. An order issued under the UDPCVA is by
definition a “temporary order” and terminates “60 days from the date the deploying
parent gives notice of having returned from deployment to the other parent” or “death
of the deploying parent”:
A temporary order for custodial responsibility issued under
Part 3 of this Article shall terminate, if no agreement
between the parties to terminate a temporary order for
custodial responsibility has been filed, 60 days from the
date the deploying parent gives notice of having returned
from deployment to the other parent and any nonparent
granted custodial responsibility, when applicable, or upon
the death of the deploying parent, whichever occurs first.
N.C. Gen. Stat. § 50A-388(a). “The general rule which has been stated by this Court
is that temporary custody orders are interlocutory and unless the order affects a
“substantial right of [the appellant] which cannot be protected by timely appeal from
the trial court’s ultimate disposition of the entire controversy on the merits[,]” the
appeal must be dismissed. File v. File, 195 N.C. App. 562, 569, 673 S.E.2d 405, 410
(2009) But all prior cases addressing appeals of temporary custody orders dealt with
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Opinion of the Court
orders entered under Chapter 50, and in those cases, a permanent order will normally
be entered in the near future. See Senner v. Senner, 161 N.C. App. 78, 81, 587 S.E.2d
675, 677 (2003). (“[A]n order is temporary if either (1) it is entered without prejudice
to either party, (2) it states a clear and specific reconvening time in the order and the
time interval between the two hearings was reasonably brief; or (3) the order does not
determine all the issues.”). Our Court has not previously addressed jurisdiction to
review an custodial responsibility order issued under the UDPCVA.6
Father contends this order falls under North Carolina General Statute § 50-
19.1, which allows immediate appeal of custody orders even if other claims remain
pending in the same action:
Notwithstanding any other pending claims filed in the
same action, a party may appeal from an order or judgment
adjudicating a claim for absolute divorce, divorce from bed
and board, child custody, child support, alimony, or
equitable distribution if the order or judgment would
otherwise be a final order or judgment within the meaning
of G.S. 1A-1, Rule 54(b), but for the other pending claims
in the same action.
N.C. Gen. Stat. § 50-19.1 (2017).
We agree that a custodial responsibility order under the UDPCVA is a variety
of “child custody” order covered by North Carolina General Statute § 50-19.1.
6 “Custodial responsibility” is “[a] comprehensive term that includes any and all powers and duties
relating to caretaking authority and decision-making authority for a child. The term includes custody,
physical custody, legal custody, parenting time, right to access, visitation, and the authority to
designate limited contact with a child.” N.C. Gen. Stat. § 50A-351(6).
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Opinion of the Court
Although Jay’s Custody order was a temporary order and issues regarding his
permanent custody remain unresolved, the issues regarding his permanent custody
under Chapter 50 are independent of Father’s claim under the UDPCVA. The order
on appeal is technically a “temporary” order, since custodial responsibility orders
under the UDPCVA are required to be temporary orders unless the parties agree to
entry of a permanent order.7 See N.C. Gen. Stat. §§ 50A-385-388. But orders for
custodial responsibility under the UDPCVA would be essentially non-appealable if
we treated them like temporary custody orders under Chapter 50. The order on
appeal is a final order addressing all issues raised under the UDPCVA and those
issues are independent of the underlying Chapter 50 custody claims, so it is otherwise
“a final order or judgment within the meaning of G.S. 1A-1, Rule 54(b), but for the
other pending claims in the same action.” N.C. Gen. Stat. § 50-19.1. In addition, as
a practical matter, since a hearing regarding Jay’s pending permanent custody could
not be done while Father is deployed, if Father were required to wait for resolution
of Jay’s permanent custody before appealing the custodial responsibility order, the
UDPCVA order would be rendered moot. Because the order under the UDPCVA is a
7“After a deploying parent receives notice of deployment and during the deployment, a court may issue
a temporary order granting custodial responsibility unless prohibited by the Servicemembers Civil
Relief Act, 50 U.S.C. app. §§ 521-522. A court may not issue a permanent order granting custodial
responsibility in the absence of the deploying parent without the consent of the deploying parent.”
N.C. Gen. Stat. § 50A-370(a).
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Opinion of the Court
final order addressing the UDPCVA claim, we have jurisdiction to review the order
under North Carolina General Statute § 50-19.1.
III. Parties
We first note that Stepmother has not formally intervened or been made a
party to this case.8 Either parent may file a claim or motion under the UDPCVA.
The UDPCVA addresses how and when a “proceeding for a temporary custody order”
may be filed. N.C. Gen. Stat. § 50A-370(b) (“At any time after a deploying parent
receives notice of deployment, either parent may file a motion regarding custodial
responsibility of a child during deployment.”). This portion of the statute does not
address intervention or adding parties to the case. Later in Article 3, North Carolina
General Statute § 50A-375, entitled “Grant of Limited Contact,” deals with provisions
of the order and provides that “[a]ny nonparent who is granted limited contact shall
be made a party to the action until the grant of limited contact is terminated. N.C.
Gen. Stat. § 50A-375(b) (emphasis added). “Limited contact” is defined as “[t]he
opportunity for a nonparent to visit with a child for a limited period of time. The term
includes authority to take the child to a place other than the residence of the child.”
N.C. Gen. Stat. § 50A-351(11).
8 Elizabeth’s Consent Order includes a provision regarding intervention by “Defendant’s mother,
Diane Ivers Raulli” who “filed a Motion to Intervene in this case on June 28, 2016.” The parties
stipulated Defendant’s mother was allowed to intervene and a consent order was to be prepared
granting intervention, reserving her request for grandparent visitation rights. Our record does not
reveal if the order for intervention was ever entered or if Grandmother’s request for visitation was
ever considered.
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Opinion of the Court
The order on appeal granted Stepmother, a “nonparent” as defined by North
Carolina General Statute § 50A-351(11), “limited contact” with Elizabeth, so she
should have been made a party to this action “until the grant of limited contact is
terminated.” N.C. Gen. Stat. § 50A-375(b). We must therefore consider whether we
have jurisdiction to consider the issues on appeal, since all “necessary parties” must
be joined in an action under North Carolina General Statute § 1A-1, Rule 19:
Rule 19 dictates that all necessary parties must be joined
in an action. Rule 19 requires the trial court to join as a
necessary party any persons united in interest and/or any
persons without whom a complete determination of the
claim cannot be made since a judgment without such
necessary joinder is void. A party does not waive the
defense of failure to join a necessary party; an objection on
this basis can be raised at any time. A reviewing court is
required to raise the issue ex mero motu to protect its
jurisdiction.
Commonwealth Land Title Ins. Co. v. Stephenson, 97 N.C. App. 123, 125, 387 S.E.2d
77, 79 (1990) (emphasis added) (citations, quotation marks, brackets, and ellipsis
omitted).
Under North Carolina General Statute § 50A-370(b), only the parents may
bring a claim under the UDPCVA, so Stepmother could not have filed the motion.
N.C. Gen. Stat. § 50A-370(b). Under North Carolina General Statute § 50A-375(b),
the trial court is directed to make a person to whom limited contact is granted “a
party to the action until the grant of limited contact is terminated.” N.C. Gen. Stat.
§ 50A-375(b). “It is well established that ‘the word “shall” is generally imperative or
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mandatory.’” Multiple Claimants v. N. Carolina Dep’t of Health & Human Servs.,
361 N.C. 372, 378, 646 S.E.2d 356, 360 (2007) (quoting State v. Johnson, 298 N.C.
355, 361, 259 S.E.2d 752, 757 (1979)). In addition, “[a] nonparent granted caretaking
authority, decision-making authority, or limited contact under this Part has standing
to enforce the grant until it is terminated under Part 4 of this Article or by court
order.” N.C. Gen. Stat. § 50A-376(b). Thus, Stepmother would have standing to
enforce the order under North Carolina General Statute § 50A-376(b). The order also
specifically directs Stepmother to participate in the visitation schedule for Elizabeth
and to “work together” with Mother to ensure that Elizabeth does not miss special
events and that she will see her step and half siblings for “major holidays, including
Thanksgiving and Christmas.”
We also recognize that in custody cases, our Courts have previously recognized
“de facto parties” where a nonparent has been granted custodial rights by a court
order and have allowed the “de facto” parties to be formally added as parties even
after entry of a court order or on appeal. In Sloan v. Sloan, this Court noted
Moreover, after a trial court has awarded custody to
a person who was not a party to the action or proceeding,
this Court has held that
it would be proper and advisable for that
person to be made a party to the action or
proceeding to the end that such party would
be subject to orders of the court. This may be
done even after judgment and by the
appellant court when the case is appealed.
By filing a motion to intervene in the matter, intervenors
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Opinion of the Court
were simply requesting to be formally recognized as parties
to a child custody action in which they had already been
awarded visitation rights. Therefore, the trial court did not
err in granting their motion to intervene even after the
order determining permanent custody of C.S. was entered.
164 N.C. App. 190, 194-95, 595 S.E.2d 228, 231 (2004) (citation, ellipsis, and brackets
omitted).
Therefore, Stepmother was treated as a “de facto” party based upon the trial
court’s order granting her limited contact and ordering her to take specific actions,
and the fact that the trial court did not formally order her to be added as a party does
not impair our jurisdiction. As noted in In re Custody of Branch, it is “proper and
advisable” for Stepmother to be “made a party to the action or proceeding to the end
that such party would be subject to orders of the court.” 16 N.C. App. 413, 415, 192
S.E.2d 43, 45 (1972). “We have held, however, that this may be done even after
judgment and by the appellate court when the case is appealed.” Id. Based upon
North Carolina General Statute § 50A-375, Stepmother should be made a party to
this action “until the grant of limited contact is terminated,” so we will remand the
order on appeal for the trial court to include this provision.
IV. Standard of Review
No case has yet addressed the standard of review for custodial responsibility
orders under the UDPCVA. The issues presented here are primarily statutory
construction issues, which we review de novo:
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We review issues of statutory construction de novo. In
matters of statutory construction, our primary task is to
ensure that the purpose of the legislature, the legislative
intent, is accomplished. Legislative purpose is first
ascertained from the plain words of the statute. A statute
that is clear on its face must be enforced as written. Courts,
in interpreting the clear and unambiguous text of a statute,
must give it its plain and definite meaning, as there is no
room for judicial construction. . . .
In applying the language of a statute, and because the
actual words of the legislature are the clearest
manifestation of its intent, we give every word of the
statute effect, presuming that the legislature carefully
chose each word used. Finally, we must be guided by the
fundamental rule of statutory construction that statutes in
pari materia, and all parts thereof, should be construed
together and compared with each other.
Hill v. Hill, ___ N.C. App. ___, ___, 821 S.E.2d 210, 227-28 (2018) (alteration in
original) (quoting In re Ivey, ___ N.C. App. ___, ___, 810 S.E.2d 740, 744 (2018)).
Father challenges none of the trial court’s findings of fact as unsupported by
the evidence, so where the trial court has correctly interpreted the statute, we review
the trial court’s conclusions of law to determine if they are supported by the findings
of fact. Shipman v. Shipman, 357 N.C. 471, 475, 586 S.E.2d 250, 254 (2003). “Absent
an abuse of discretion, the trial court’s decision in matters of child custody should not
be upset on appeal.” Everette v. Collins, 176 N.C. App. 168, 171, 625 S.E.2d 796, 798
(2006). “An abuse of discretion occurs when the trial court’s ruling is so arbitrary
that it could not have been the result of a reasoned decision.” In re N.G., 186 N.C.
App. 1, 10-11, 650 S.E.2d 45, 51 (2007).
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V. Caretaking and Decision-Making Authority for Elizabeth
Just as the underlying custody order provisions for Elizabeth and Jay differ,
the trial court’s order under the UDPCVA also has different provisions for Elizabeth
and Jay. As to Elizabeth, the trial court granted limited contact; as to Jay, the trial
court denied Father’s motion entirely. We will therefore address the provisions of the
order regarding Elizabeth and Jay separately.
A “Prior Judicial Order” under N.C. Gen. Stat § 50A-373
Father does not challenge the trial court’s findings of fact but argues the trial
court erred by denying caretaking authority or decision-making authority as to
Elizabeth. The trial court granted only limited contact with Elizabeth to Stepmother.
Father argues first that Elizabeth’s Consent Order does not “directly address a
deployment but only addresses ‘Temporary Military Duty’ or ‘Active Duty.’” He
contends that these terms, as used in Elizabeth’s Consent Order, refer to his “military
activity during his once a month drill or when he is sent away for required military
training in preparation for a deployment.” Thus, Father argues, since Elizabeth’s
Consent Order does not address deployment, it is not a “prior judicial order
designating custodial responsibility of a child in the event of deployment.” N.C. Gen.
Stat. § 50A-373(1) (emphasis added). Father contends that the trial court should
have considered his claim as to Elizabeth under North Carolina General Statute §
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50A-374, which controls in the absence of a “prior judicial order” addressing
deployment.
Mother agrees with Father that Elizabeth’s Consent Order “does not
specifically refer to the term ‘deployment’ so it is not a ‘prior judicial [order]’ as
contemplated by N.G. Gen. Stat. § 50A-373(1).” She agrees that “N.C.G.S. § 50A-374
was the governing statute for the trial court to determine whether to grant caretaking
and decision-making authority for” Elizabeth and contends the trial court applied it
properly since North Carolina General Statute § 50A-374 says the court may grant
caretaking authority to a nonparent but does not require that it do so.
The trial court first made detailed findings of fact regarding the prior orders
and various family members, including Stepmother, the children’s stepsister, and
their half brother. As to Elizabeth, the trial court made these relevant findings of
fact and conclusions of law:
15. [Mother] has not cut off access to both minor children
to [Stepmother] or to their step-sister and half-brother.
16. [Mother] and [Stepmother] communicate better with
each other than the parties do with one another.
17. [Mother] and [Stepmother] seem to work out these
children maintaining a relationship amongst
themselves and both are acting in the children’s best
interests.
....
19. There is a prior permanent custody order in place for
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the minor child [Elizabeth]. The order refers to “active
duty,” but not specifically to “deployment.”
20. There are sufficient circumstances to grant limited
contact as to [Elizabeth] but deny custodial
responsibility and decision making authority. The
terms of the prior order are sufficient to address
custodial/decision-making authority.
21. Sufficient circumstances exist to allow [Stepmother]
limited contact with [Elizabeth] as described herein.
22. [Mother] and [Stepmother] can do a great job in keeping
these four children in contact with one another and
that both of them want to see these children thrive.
23. [Mother] and [Stepmother] can augment the above
limited contact in ways that are beneficial to all four of
the above-mentioned children even though only two of
them are subject to this order.
24. [Mother] and [Stepmother] have not acted in any way
other than keeping the four children in contact with
one another and allowing the children to thrive.
....
Based on the foregoing FINDINGS OF FACT, the Court
makes the following:
CONCLUSIONS OF LAW
1. The facts as set forth in paragraphs 1 through 25 above
are fully incorporated herein by reference to the extent that
they are also conclusions of law.
2. The Court has jurisdiction of the parties and the subject
matter of this action.
3. That there are not sufficient circumstances to modify the
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previous custody orders of [Elizabeth] and [Jay] to allow
custodial responsibility and grant decision making
authority to [Stepmother.]
4. That [Elizabeth’s] custody order is not clear on limited
contact in the event of Plaintiff’s deployment and limited
contact as to [Elizabeth] to [Stepmother] is granted as
described herein.
5. That NCGS §50A-373 specifically says, “In a proceeding
for a grant of custodial responsibility pursuant to this Part”
6. That NCGS §50A-373 and §50A-375 are both located in
Part 3 of Article 3, Chapter 50A of the North Carolina
General Statutes.
7. That the grant of Limited Contact is a proceeding of Part
3 of Article 3, Chapter 50A of the North Carolina General
Statutes and is subject to NCGS §50A-373.
Although Mother and Father both contend in their briefs that the claim for a
custodial responsibility order for Elizabeth is not subject to North Carolina General
Statute § 50A-373, we disagree, at least in part. We will first address the “Judicial
Procedure for Granting Custodial Responsibility During Deployment” as set out in
Part 3 of the UPDCVA. Part 3 sets out provisions applicable to the trial court’s
resolution of a claim for a custodial responsibility order. N.C. Gen. Stat. §§ 50A-370-
384. North Carolina General Statute § 50A-373 titled, “Effect of a prior judicial
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decree or agreement,”9 governs cases in which the parents have an existing order or
agreement addressing “custodial responsibility of a child in the event of deployment”:
In a proceeding for a grant of custodial responsibility
pursuant to this Part, the following shall apply:
(1) A prior judicial order designating custodial
responsibility of a child in the event of deployment is
binding on the court unless the circumstances require
modifying a judicial order regarding custodial
responsibility.
N.C. Gen. Stat. § 50A-373.
B. Terminology
One issue noted by the Prefatory Note to the Uniform Act is “The Problem of
Differing Terminology”:
The UDPCVA seeks to establish uniformity in the
terminology used in custody cases arising from
deployment, given the prospect that many of these cases
will involve more than one jurisdiction. States, however,
currently differ on the terminology that they use to
describe issues of custody and visitation. In enacting the
UDPCVA, states are encouraged to add any state specific
terminology to the definitions of the specific terms used in
the Act, without replacing the Act’s specific terms or
deleting the existing definitions of those terms. Use of
common terms and definitions by states enacting the Act
will facilitate resolution of cases involving multiple
jurisdictions.
9We note that the Uniform Act entitles this same section “Effect of Prior Judicial Order or Agreement,”
while North Carolina General Statute § 50A-373 is titled “Effect of prior judicial decree or agreement.”
(Emphasis added.) Yet the substantive language of both the Uniform Act and North Carolina statute
uses the same terminology: “A prior judicial order . . . .” N.C. Gen. Stat. § 50A-373. The Official
Comments following the section also use the term “decree” instead of “order.” We have been unable to
determine any relevant difference between the terms “order” and “decree” for purposes of this case.
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Unif. Deploy. Parent Cust. & Vist. Act, Prefatory Note.
The terminology used by the UDPCVA is crucial to both the parents’
arguments and our analysis, so we will first address the meaning of the controlling
terms. The UDPCVA includes definitions of many terms, and where the statute has
provided a definition, we must use that definition. See Knight Pub. Co. v. Charlotte-
Mecklenburg Hosp. Auth., 172 N.C. App. 486, 492, 616 S.E.2d 602, 607 (2005) (“If a
statute ‘contains a definition of a word used therein, that definition controls,’ but
nothing else appearing, ‘words must be given their common and ordinary meaning[.]’”
(alteration in original) (quoting In re Clayton-Marcus Co., 286 N.C. 215, 219, 210
S.E.2d 199, 203 (1974)).
North Carolina’s UDPCVA was adopted in 2013 with only a few variations
from the Uniform Act. North Carolina General Statute § 50A-395, titled “Uniformity
of application and construction” requires that “[i]n applying and construing this
Article, consideration shall be given to the need to promote uniformity of the law with
respect to its subject matter among states that enact it.” N.C. Gen. Stat. § 50A-395.
Very few other state appellate courts have addressed orders issued under the
UDPCVA, and none have addressed the issues raised in this case. We will consider
any differences between the Uniform Act and the law as adopted in North Carolina
to determine if they are relevant to the issues in this case, and we will consider the
Prefatory Note and Comments to the Uniform Act as applicable. As to any
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terminology used by the Uniform Act and adopted by North Carolina, we will seek to
interpret terms as intended under the Uniform Act “to promote uniformity of the law
with respect to its subject matter.” Id. We will therefore use the specific terms as
stated in the UDPCVA in accord with their definitions and will include terms used in
North Carolina “without replacing the Act’s specific terms or deleting the existing
definitions of those terms.” Id.
C. “Custodial Responsibility”
There is no dispute that Elizabeth’s Consent Order is a “prior judicial order,”
as it is an order previously issued in Elizabeth’s custody case. The issue on appeal
arises based upon the rest of the phrase: “designating custodial responsibility of a
child in the event of deployment.” N.C. Gen. Stat. § 50A-373(1). The first term we
must consider is “custodial responsibility.” The UDPCVA uses several terms unique
to the Uniform Act to address various aspects of custody, recognizing that different
states use different terminology. “Custodial responsibility” is the “umbrella term” for
the various aspects of custody:
The UDPCVA establishes one umbrella term,
“custodial responsibility,” for all issues relating to custody,
including the responsibility often referred to in other state
custody law as physical custody, visitation, and legal
custody. The Act also establishes three sub-categories of
custodial responsibility that can be transferred to others
during deployment: “caretaking authority,”
“decision-making authority,” and “limited contact.” The
terminology used for each of these sub-categories is
original to the UDPCVA. The term “caretaking authority”
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is meant to encompass the authority to live with, spend
time with, or visit with a child. States often use a number
of terms that fall within this definition, including “primary
physical custody,” “secondary physical custody,”
“visitation,” and “possessory conservatorship.” All these
are meant to be subsumed under the term “caretaking
authority.”
In contrast, the term “decision-making authority”
means the authority to make decisions about a child’s life
beyond the authority that ordinarily accompanies a
transfer of caretaking authority under state custody law.
This term is meant to encompass the authority referred to
in many states as “legal custody,” including the authority
reasonably necessary to make decisions such as the ability
to enroll the child in a local school, to deal with health care,
to participate in religious training, and to allow the child
to engage in extracurricular activities and travel.
Finally, the term “limited contact” refers to a form of
visitation with the child given to nonparents on the request
of a deployed service member. This type of visitation allows
the service member to sustain his or her relationship with
the child through designating either a family member or
other person with whom the child has a close relationship
to spend time with the child during the service member’s
absence. The limited contact definition allows the
possibility that it may be granted to minors as well as
adults. Thus a minor half-sibling or step-sibling of the child
could be granted limited contact during a service member’s
deployment. This type of contact with the child is a more
limited form of visitation than courts usually grant to
parents or grandparents outside the deployment context.
N.C. Gen. Stat. § 50A-351 Official Comment.
Elizabeth’s Consent Order addressed physical custody and visitation,
comparable to “caretaking;” we have quoted some of those provisions above. The
Consent Order also had detailed provisions under the heading “Legal Custody” which
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addressed joint decision-making in the “major areas of parenting, as often as
possible,” including subsections addressing day-to-day decisions; medical treatment;
education; extracurricular activities; and travel out of state. It also addressed
decision-making when Father is “deployed or otherwise unavailable due to his
military status and therefore he be [sic] unable to respond to Defendant surrounding
a matter that would generally fall under legal custody as described herein.”
But Elizabeth’s Order does not address “limited contact,” which differs
somewhat from the types of provisions typically included in a consent order between
two parents addressing only their own custody and visitation rights under Chapter
50. “Limited contact” is a form of visitation with nonparents; under Chapter 50, a
trial court can grant visitation to nonparents only in very limited circumstances. See
McIntyre v. McIntyre, 341 N.C. 629, 635, 461 S.E.2d 745, 749-50 (1995) (finding
grandparents have the right to seek visitation “only in certain clearly specified
situations”). This type of visitation with persons other than parents can be addressed
by an order or agreement, but in this instance, the parents did not set forth any form
of “limited contact” with any nonparent.10
D. “Deployment”
The next term in contention here is “deployment.” Fortunately, the UDPCVA
also defines deployment:
10As noted above, Elizabeth’s Consent Order included a provision regarding intervention by the
maternal grandmother and her request for grandparent visitation rights was reserved.
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The movement or mobilization of a service member to a
location for more than 90 days, but less than 18 months,
pursuant to an official order that (i) is designated as
unaccompanied; (ii) does not authorize dependent travel; or
(iii) otherwise does not permit the movement of family
members to that location.
N.C. Gen. Stat. § 50A-351(9).
Both Mother and Father contend that Elizabeth’s Consent Order refers to
“Temporary Military Duty” and “Active Duty” but not specifically “deployment.” This
is not entirely correct, as the order includes a decision-making provision which
specifically includes deployment:
The parties further stipulate and agree that should
Plaintiff be deployed or otherwise unavailable due to his
military status and therefore he be unable to respond to
Defendant surrounding a matter that would generally fall
under legal custody as described herein, Defendant shall
be entitled to solely make said decision after waiting forty-
eight (48) hours to hear back from Plaintiff short of an
emergency.
(Emphasis added.)
Certainly, the parents were using the common meaning of “deployment” in the
Consent Order and not the specific definition under the UDPCVA but that does not
mean that Elizabeth’s Consent Order provisions do not address the circumstances
described as “deployment” as defined by North Carolina General Statute § 50A-
351(9). Both deployment and active duty are defined by the Department of Defense,
and we look to those definitions to aid our interpretation. Active duty is defined as,
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“Full-time duty in the active military service of the United States, including active
duty or full-time training duty in the Reserve Component.” U.S. Dep’t of Defense,
Dictionary of Military and Associated Terms, 7 (May 2019). Deployment is defined
as, “The movement of forces into and out of an operational area.” Id. at 65.
The terms of Elizabeth’s order actually contemplate several types of military
duty by Father, ranging from weekend drill—which would not be “deployment” as
defined by the UDPCVA due to the short time duration—to “Active Duty,” which is
the type of duty Father was deployed to perform. One subsection of the order,
following the regular weekly schedule, addresses a variation to the schedule for his
monthly drill weekends: “Military Duty: In the event that the Plaintiff has an USAR
Drill Weekend (also known as a ‘Battle Assembly’), he shall pick up the minor child
by 6:00 PM on Sunday to begin his physical custodial time.” Later, the Consent Order
addresses longer term assignments in a section referring to “Temporary Military
Duty” and “Active Duty,” including “any Temporary Military Duty that would impact
the Regular Weekly Schedule set forth above.” (Emphasis added.) Father’s
deployment to Africa for over a year obviously “impact[s] the Regular Weekly
Schedule.” Thus, Elizabeth’s Consent Order is “[a] prior judicial order designating
custodial responsibility of a child in the event of deployment[.]” N.C. Gen. Stat. § 50A-
373(1) (emphasis added). Although the Consent Order does not address limited
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contact, it addresses caretaking authority and decision-making authority in the event
of deployment.
E. Application of N.C. Gen. Stat. 50A-373
We have determined that Elizabeth’s Consent Order is “[a] prior judicial order
designating custodial responsibility of a child in the event of deployment,” so it is
“binding on the court unless the circumstances require modifying a judicial order
regarding custodial responsibility.” N.C. Gen. Stat. §50A-373(1). As noted above, the
Consent Order addresses only “caretaking” and “decision-making,” so it was “binding”
on the trial court “unless the circumstances require modifying a judicial order
regarding custodial responsibility.” Id. (emphasis added). The trial court found “the
terms of the prior order are sufficient to address custodial/decision-making
authority.” But Father argues that
[i]t is well established in North Carolina that a trial court
may order a modification of an existing child custody order
between two natural parents if the party moving for
modification shows that a “substantial change of
circumstances affecting the welfare of the child” warrants
a change in custody provided that the change is in the best
interest of the child.
However, the North Carolina legislature enacted
North Carolina’s UDPCVA with a weaker “circumstances
require” in NCGS §50A-373(1) versus “circumstances meet
the requirements of law of this state other than this [act]
for modifying a judicial order regarding custodial
responsibility,” of the model act section 305(1).
Plaintiff/Appellant’s position is that “circumstances
required” is too nebulous to be considered anything but
the normal conditions to modify a custody order.
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Therefore, [Elizabeth’s] order should not be viewed for
caretaking authority through NCGS §50A-373(1) but
through NCGS 50A-374.
(Citations omitted.)
North Carolina General Statute § 50A-373 differs from the Uniform Act’s
comparable Section 305, as noted by Father, in a manner he contends inappropriately
gives the trial court entirely unlimited discretion to enter or to refuse to enter a
custodial responsibility order contrary to a “prior judicial order” which addresses
custody in the event of deployment. The UDPCVA provides no specific guidance on
why our General Assembly substituted the terms “circumstances require” for
“circumstances meet the requirements of law of this state other than this [act] for
modifying a judicial order regarding custodial responsibility.” But North Carolina
General Statute § 50A-395 requires us to give consideration “to the need to promote
uniformity of the law with respect to its subject matter among states that enact it.”
N.C. Gen. Stat. § 50A-395. In addition, the General Assembly adopted the Comments
to Section 305 of the Uniform Act, and these comments address the language of the
Uniform Act, despite the difference in the language adopted by North Carolina. The
Official Comment notes that
[s]ection 305 [G.S. 50A-373] governs the court’s
consideration of a past judicial decree or agreement
between the parents that specifically contemplates custody
during a service member’s deployment. In crafting this
provision, the UDPCVA seeks to give significant deference
to past decrees and agreements in which issues of custody
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during deployment have already been considered and
resolved. At the same time, it seeks to balance the value of
certainty gained by leaving settled matters settled against
the recognition that in some circumstances past
determinations may no longer be in the best interest of the
child.
This provision gives somewhat more deference to
custody provisions in prior judicial decrees than in out-of-
court agreements. To overturn the former, the challenger
must first meet the state’s standard for modifying a judicial
decree regarding custodial responsibility. In most states,
this standard requires that there be a showing of a
substantial or material change of circumstances that was
not foreseeable at the time the prior judicial decree was
entered. Only if a challenger meets that showing, as well
as overcomes the presumption that the previous decree was
in the best interest of the child, may the court modify the
earlier decree. In contrast, the challenger of a custody
provision established in a past agreement needs only to
overcome the presumption that the provision is in the best
interest of the child.
N.C. Gen. Stat. § 50A-373 Official Comment (alteration in original) (emphasis added).
By rejecting the phrase “meet the requirements of the law of this state other
than this [act]” as used in the Uniform Act, the General Assembly was removing the
portion of the statute which would arguably have required the exact same substantial
change of circumstances as the standard for modification of a prior permanent
custody order under North Carolina’s UDPCVA. As enacted in North Carolina, the
UPDCVA allows the trial court to modify a prior custody order with a lesser showing
than would normally be required for modification of a permanent order. In other
words, the movant need not prove a “substantial change in circumstances that was
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not foreseeable at the time the prior judicial decree was entered[,]” as described in
the Official Comments. See N.C. Gen. Stat. § 50A-373 Official Comment (allowing an
existing custody order to be modified if the “circumstances require” which is left to
the trial court to determine).
This lesser standard for “circumstances” which “require” modification is in
accord with the purpose of the UDPCVA. It is intended to address “issues of child
custody and visitation that arise when parents are deployed in military or other
national service” since “deployment in national service raises custody issues that are
not adequately dealt with in the law of most states.” Unif. Deploy. Parent Cust. &
Vist. Act, Prefatory Note. If a motion to modify a prior permanent custody order
based upon a substantial change of circumstances affecting the best interests of the
children under North Carolina General Statute § 50-13.7 adequately addressed the
custody concerns of deployed parents and their families, there would be no need for
the UDPCVA to address the standard for modification at all. Often, the parents will
have an existing order or agreement, which may or may not address deployment or
as in this case, the order may address some aspects of custodial responsibility but not
others. The UDPCVA seeks to enable deployed parents to obtain an order quickly
and to preserve not just the relationship between the deployed parent and child, but
also between the child and the deployed parent’s other family members or others who
have a substantial relationship with the child based upon the deployed parent.
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Although we agree with Father that the phrase “circumstances require” may
seem “nebulous,” it is given more content and meaning when read in context with the
other applicable provisions of the UDPCVA and the “polar star” of all child custody
cases: the best interests of the child.11
In custody matters, the best interests of the child is the
polar star by which the court must be guided. Although the
trial judge is granted wide discretion, a judgment awarding
permanent custody must contain findings of fact in support
of the required conclusion of law that custody has been
awarded to the person who will best promote the interest
and welfare of the child. These findings may concern
physical, mental, or financial fitness or any other factors
brought out by the evidence and relevant to the issue of the
welfare of the child. The welfare of the child is the
paramount consideration to which all other factors,
including common law preferential rights of the parents,
must be deferred or subordinated.
McRoy v. Hodges, 160 N.C. App. 381, 386-87, 585 S.E.2d 441, 445 (2003) (citations,
quotation marks, and ellipsis omitted).
The trial court must give deference to a “prior judicial order” which addresses
“custodial responsibility” in the event of deployment, but if “circumstances require,”
it may enter an order under the UDPCVA with additional terms for any aspect of
11 North Carolina General Statute § 50A-374, the statute Father argues should apply to his motion as
to Elizabeth, grants the trial court discretion to grant caretaking authority if it is in the best interest
of the child. N.C. Gen. Stat. § 50A-374(a) (“In accordance with the laws of this State and on the motion
of a deploying parent, a court may grant caretaking authority of a child to a nonparent who is an adult
family member of the child or an adult with whom the child has a close and substantial relationship if
it is in the best interest of the child.” (emphasis added)). Several other sections of the UDPCVA also
refer to “the law of this State” and “best interest of the child.” See N.C. Gen. Stat. § 50A-352, 373,
374, 375, 377, 378, 379, 387 & 388. The UDPCVA incorporates the “best interest” standard explicitly
in various sections. See N.G. Gen. Stat. §§ 50A-373(b), 375(a), 377(3)-(4), 379(a), 387.
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“custodial responsibility,” including caretaking, decision-making, or limited contact.
See N.C. Gen. Stat. §50A-373(a). Although it is not clear from the trial court’s
conclusions of law exactly how it determined North Carolina General Statute § 50A-
373 applied to Elizabeth’s Consent Order, the trial court’s rationale is clear.
Essentially, the trial court examined the relationships between Mother, Stepmother,
and all four children; noted the admirable cooperation between Mother and
Stepmother; examined the existing provisions of Elizabeth’s Consent Order; and
determined that the circumstances required no change to the provisions of the order
regarding caretaking or decision-making, but that it would be in Elizabeth’s best
interest to have limited contact as set out in the order.
F. Caretaking Authority
Father argues that the trial court was not bound by Elizabeth’s Consent Order
and erred by not granting Stepmother caretaking authority under North Carolina
General Statute §50A-374, which provides that the trial court “may grant caretaking
authority of a child to a nonparent who is an adult family member of the child or an
adult with whom the child has a close and substantial relationship if it is in the best
interest of the child.” N.C. Gen. Stat. § 50A-374(a) (emphasis added). Even if we
agreed with Father that Elizabeth’s Consent Order was not binding on the trial court,
the trial court had the discretion to grant caretaking authority under North Carolina
General Statute § 374 but was not required to do so.
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“As used in statutes, the word ‘shall’ is generally
imperative or mandatory.” In contrast, “may” is generally
intended to convey that the power granted can be exercised
in the actor’s discretion, but the actor need not exercise that
discretion at all.
Silver v. Halifax Cty. Bd. of Commissioners, ___ N.C. ___, ___, 821 S.E.2d 755, 761
(2018) (emphasis added) (citation omitted).
Father has not shown that the trial court abused its discretion by denying
caretaking authority to Stepmother. The trial court’s findings show it carefully
considered the entire family’s situation and tailored the order to address Elizabeth’s
needs, so we cannot discern any abuse of discretion. See Walsh v. Jones, ___ N.C.
App. ___, ___, 824 S.E.2d 129, 134 (2019) (“Our trial courts are vested with broad
discretion in child custody matters. This discretion is based upon the trial courts’
opportunity to see the parties; to hear the witnesses; and to detect tenors, tones, and
flavors that are lost in the bare printed record read months later by appellate judges.”
(quoting Shipman 357 N.C. at 474, 586 S.E.2d at 253-54)).
G. Decision-Making Authority
Father also argues that the trial court erred by not granting Stepmother
decision-making authority under North Carolina General Statute § 50A-374, which
provides that the trial court
may grant part of the deploying parent’s decision-making
authority for a child to a nonparent who is an adult family
member of the child or an adult with whom the child has a
close and substantial relationship if the deploying parent is
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unable to exercise that authority. When a court grants the
authority to a nonparent, the court shall specify the
decision-making powers that will and will not be granted,
including applicable health, educational, and religious
decisions.
N.C. Gen. Stat. § 50A-374(c) (emphasis added).
Father argues that Elizabeth’s Consent Order, which requires him to respond
to Mother within 48 hours regarding decisions they are to make jointly, are not
practicable during his deployment since he will be “on another continent” and
although he may have access to “video chatting and email, his military duty
frequently requires him to be away from civilian communications for days at a time.”
Since he may be unable to be reached or unable to respond within 48 hours, he
contends that Stepmother knows “his wishes” on a “wide variety of subjects,” she
should be allowed to step into his role in joint decision-making with Mother. But we
note that Father did not testify at the hearing, and Stepmother did not testify
regarding Father’s duties during his deployment, his actual communication options,
or his potential lack of access to “video chatting or email” during his deployment.
Since Father presented no evidence on these facts, we will generously assume that
Father’s argument is generally based upon the “communications” section of
Elizabeth’s Consent Order, which provides for the parents to “share and exchange
information” “via telephone, email and text messages.”
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Just as for caretaking authority, decision-making authority is a discretionary
ruling, but this subsection provides a condition precedent: the trial court may grant
decision-making authority to a nonparent “if the deploying parent is unable to
exercise that authority.” Id. Father did not present evidence regarding his potential
lack of ability to communicate with Mother by “telephone, email and text messages,”
as provided by Elizabeth’s Consent Order. Where Father did not present evidence
that his military duties would substantially interfere with his ability to use these
forms of communication or that he would normally be unable to respond to Mother
within 48 hours, the trial court had no basis upon which to find that Father would be
“unable to exercise” his decision-making authority. Father has not demonstrated any
abuse of discretion by the trial court’s denial of decision-making authority to
Stepmother.
H. Limited Contact
Since Elizabeth’s Consent Order did not address the aspect of “custodial
responsibility” defined by the UDPCVA as “limited contact,” the trial court’s
consideration of “limited contact” was governed by North Carolina General Statute
§50A-375:
In accordance with laws of this State and on motion of a
deploying parent, a court shall grant limited contact with
a child to a nonparent who is either a family member of the
child or an individual with whom the child has a close and
substantial relationship, unless the court finds that the
contact would be contrary to the best interest of the child.
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N.C. Gen. Stat. § 50A-375(a) (emphasis added). The trial court did grant Stepmother
“limited contact” for Elizabeth, but Father argues that the trial court erred because
the amount of time granted was “substantially reduced from” the time granted to
Father by Elizabeth’s Consent Order. He contends that the reduction in contact
between Elizabeth and her stepsister and half brother is not in her best interest.
Unlike “caretaking authority” and “decision-making authority” under North
Carolina General Statute § 50A-374, North Carolina General Statute § 50A-375 uses
mandatory language. The trial court “shall grant limited contact with a child to a
nonparent who is either a family member of the child or an individual which whom
the child has a close and substantial relationship, unless the court finds that the
contact would be contrary to the best interest of the child.” Id. (emphasis added). “It
is well established that ‘the word “shall” is generally imperative or mandatory.’”
Multiple, 361 N.C. at 378, 646 S.E.2d at 360 (quoting State v. Johnson, 298 N.C. 355,
361, 259 S.E.2d 752, 757 (1979)). Therefore, the trial court is not required to grant
caretaking or decision-making authority, but the trial court is obligated to grant
limited contact with a nonparent who has a “close and substantial relationship” with
the child unless the court finds that doing so would be contrary to the best interest of
the child. See N.C. Gen. Stat. §§ 50A-374-375.
Based upon the trial court’s findings, it determined that continued contact
between Elizabeth and Stepmother and her stepsister and half brother was in her
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best interest. But Elizabeth’s Consent Order did not address limited contact with a
nonparent, and the trial court was not bound by the schedule of custodial time
granted to Father in the Order. The actual schedule and amount of limited contact
with a nonparent remains within the discretion of the trial court. Here, Elizabeth
and Jay already had different custodial schedules based upon the difference in their
ages and needs. The trial court did not abuse its discretion by granting “limited
contact” to Elizabeth on a different and lesser schedule than Father’s usual custodial
time under her Consent order.
We also note that Father has not specifically argued, and we have therefore
not considered, whether the trial court should have considered any separate grant of
limited contact between Elizabeth and her step or half siblings. North Carolina
General Statute § 50A-375 provides that “a court shall grant limited contact with a
child to a nonparent who is either a family member of the child or an individual with
whom the child has a close and substantial relationship . . . .” N.C. Gen. Stat. § 50A-
375(a). A “nonparent” is “[a]n individual other than a deploying parent or other
parent.” N.C. Gen. Stat. § 50A-351(12). A “close and substantial relationship” is “[a]
relationship in which a significant bond exists between a child and a nonparent.”
N.C. Gen. Stat. § 50A-351. The Official Comment notes that
[t]he limited contact definition allows the possibility that it
may be granted to minors as well as adults. Thus a minor
half-sibling or step-sibling of the child could be granted
limited contact during a service member’s deployment.
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This type of contact with the child is a more limited form of
visitation than courts usually grant to parents or
grandparents outside the deployment context.
N.C. Gen. Stat. 50A-351 Official Comment. Although an order under the UDPCVA
can grant contact to another child, as opposed to the step-parent or other adult
nonparent, the order on appeal grants the limited time to Stepmother, not to her son
or daughter.12 The order contemplates that time with Stepmother will normally
include her other children as well, thus maintaining the relationships among the
children.
Overall, the trial court’s order properly struck the balance between deference
to Elizabeth’s Consent Order and the unique provisions for “limited contact” with a
nonparent under North Carolina General Statute § 50A-375. The order’s findings of
fact support its conclusions of law, and Father has shown no abuse of discretion as to
the provisions for “limited contact” as to Elizabeth.
VI. Jay’s Order
A. Provisions of Order on Appeal
12Since the UDPCVA provides that “[a]ny nonparent who is granted limited contact shall be made a
party to the action until the grant of limited contact is terminated,” it would appear that if limited
contact were granted to a minor child, the minor child would need to be “made a party to the action,”
a prospect which may present additional procedural complications which a trial court would need to
consider carefully. N.C. Gen. Stat. § 50A-375(b) (emphasis added).
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In addition to the findings of fact and conclusions of law quoted above, the
order includes the following findings of fact (which may be more appropriately
considered as a conclusions of law) regarding Jay:
13. The prior custody order for the minor child, [Jay]
designates custodial responsibility during Plaintiff
[Father’s] deployment on behalf of the US Army and that
order is binding on this court.
14. The court finds that circumstances do not require
modification of said order.
Jay’s prior order provided as follows regarding deployment:
g. Should Plaintiff be unable to exercise his custodial time
described herein due to travel for work or any form of
military duty, including but not limited to: temporary
military duty, active duty or deployment, the minor child
shall remain in [Mother’s] custody.
Jay’s order also provided for joint decision-making in much the same manner as
Elizabeth’s consent order. Jay’s order was entered by the trial court separately from
Elizabeth’s Consent Order and it is a temporary custody order. The order provides
that a hearing upon Jay’s permanent custody would not be “scheduled before
December 2017.”
B. Distinction Between Temporary and Permanent Prior Order for Purposes of
N.C. Gen. Stat. § 50A-373(1)
Father first argues that because Jay’s Order is a temporary order, it is not a
“prior judicial order” under North Carolina General Statute § 50A-373 because “it is
well settled law in North Carolina that a temporary order entered under N.C. Gen.
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Opinion of the Court
Stat. §13.5(d3) can be revisited without a change in circumstances needed” but only
upon consideration of the child’s best interests. He contends that the trial court “must
view it through N.C. Gen. Stat. § 50A-373 as a ‘circumstances required’ equals the
best interest of the child standard or through N.C. Gen. Stat. § 50A-374, which
statutorily requires a view as the best interest of the child.” Mother contends that
North Carolina General Statute § 50A-373(1) refers to a “prior judicial order” and
makes no distinction between temporary or permanent prior judicial orders. She also
argues that Father has not cited any authority in support of his argument for a
distinction between temporary and permanent orders for purposes of North Carolina
General Statute § 50A-373(1). She is correct, but since no case in the United States
has addressed this issue, neither Father nor Mother could have cited any case as
authority under the UDPCVA on this point. But the language of the statute makes
it clear that “prior judicial order” includes both temporary and permanent orders.
In several sections the UDPCVA makes the distinction between permanent
and temporary orders, and it is obvious from the Act overall and the Comments to
the Uniform Act these words were carefully chosen, while North Carolina General
Statute § 50A-373(1) instead uses the inclusive and non-specific term “prior judicial
order.” For example, under North Carolina General Statute § 50A-353,13 regarding
13“(b) If a court has issued a permanent order regarding custodial responsibility before notice of
deployment and the parents modify that order temporarily by agreement pursuant to Part 2 of this
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Opinion of the Court
jurisdiction, the statute distinguishes between prior temporary and permanent
orders regarding custodial responsibility for purposes of determining jurisdiction
under the UCCJEA. In North Carolina General Statute § 50A-374(b), the statute
refers to an “existing permanent custody order”:
Unless the grant of caretaking authority to a nonparent
under subsection (a) of this section is agreed to by the other
parent, the grant is limited to an amount of time not
greater than (i) the time granted to the deploying parent in
an existing permanent custody order, except that the court
may add unusual travel time necessary to transport the
child or (ii) in the absence of an existing permanent custody
order, the amount of time that the deploying parent
habitually cared for the child before being notified of
deployment, except that the court may add unusual travel
time necessary to transport the child.
N.C. Gen. Stat. § 50A-374(b). Therefore, the UDPCVA gives greater weight to a prior
permanent custody order than a prior temporary order for purposes of jurisdiction
under the UCCJEA and the terms of a grant of caretaking authority. But under
North Carolina General Statute § 50A-373, the term “prior judicial order”
encompasses both temporary and permanent custody orders. A permanent order is
given more weight for the specific purposes set out in the UDPCVA, but Jay’s
Article, for purposes of the UCCJEA, the residence of the deploying parent is not changed by reason
of the deployment.
(c) If a court in another state has issued a temporary order regarding custodial responsibility as a
result of impending or current deployment, for purposes of the UCCJEA, the residence of the deploying
parent is not changed by reason of the deployment.” N.C. Gen. Stat. § 50A-353 (emphasis added).
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Opinion of the Court
temporary order is a “prior judicial order” for purposes of North Carolina General
Statute § 50A-373(a).
C. Denial of Caretaking Authority and Decision-Making Authority
Both Mother and Father acknowledge that Jay’s order more clearly addresses
custodial responsibility in the event of Father’s deployment than did Elizabeth’s
Consent Order, discussed above. Jay’s order uses the specific term “deployment,”
although, as discussed above, use of that specific term is not necessarily controlling.
If the provisions of the prior judicial order encompass custodial responsibility under
the circumstances described in North Carolina General Statute § 50A-351(9), it is a
“prior judicial order designating custodial responsibility of a child in the event of
deployment” and it “is binding on the court unless the circumstances require
modifying a judicial order regarding custodial responsibility.” N.C. Gen. Stat. § 50A-
373.
Also, as discussed above regarding Elizabeth’s Consent Order, the standard for
modifying the provisions of the prior judicial order is lesser than the substantial
change in circumstances normally required for modification of a permanent custody
order under Chapter 50, and the trial court has the discretion to determine if the
“circumstances require” entry of an order if in the best interests of the child. Father
argues that his “objective” in bringing his motion under the UDPCVA was to “keep
both children’s custody situation the same as when as when he was not deployed.”
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Opinion of the Court
Father’s goal is understandable, but it is impossible to keep their “custody situation”
the same since he—the children’s Father—is not in the home. In some circumstances,
a trial court may determine that the custodial schedule should remain the same,
despite the absence of the parent, but based upon the trial court’s findings of fact, we
see no abuse of discretion in the trial court’s determination that circumstances did
not require modification of the caretaking authority or decision-making authority as
set forth in Jay’s order, for the same reasons as stated above for Elizabeth.
D. Limited Contact
Just as Elizabeth’s Consent Order did not address the aspect of “custodial
responsibility” defined by the UDPCVA as “limited contact,” Jay’s order had no
provisions for “limited contact.” Thus, Jay’s order was not binding on the trial court
as to limited contact. In addition, the trial court’s consideration of “limited contact”
was governed by North Carolina General Statute § 50A-375:
In accordance with laws of this State and on motion of a
deploying parent, a court shall grant limited contact with
a child to a nonparent who is either a family member of the
child or an individual with whom the child has a close and
substantial relationship, unless the court finds that the
contact would be contrary to the best interest of the child.
N.C. Gen. Stat. § 50A-375(a).
As discussed above, the language of North Carolina General Statute § 50A-375
is mandatory, but there are two conditions for granting limited contact: (1) the child
has a “close and substantial relationship” with the nonparent, and (2) contact with
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Opinion of the Court
the nonparent is not contrary to the best interest of the child. Id. The trial court’s
findings do not specifically state whether Jay has a “close and substantial
relationship”—a term defined by North Carolina General Statute § 50A-351(4)—with
Stepmother or his step and half siblings, but the overall import of the evidence and
findings suggests that he does have this type of relationship with Stepmother. In
fact, Mother’s response to Father’s motion for an order under the UDPCVA admits
many allegations regarding the relationships between both children, Stepmother,
and their step and half siblings. The trial court noted that both Mother and
Stepmother were working together to maintain the relationships among the four
children and were acting in their best interests. Nothing in the trial court’s order
suggests that limited contact with Stepmother would be “contrary to the best interest
of” Jay.
The trial court determined that under North Carolina General Statute § 50A-
373(1), it could not grant limited contact to Stepmother for Jay based upon Jay’s
Order which had provisions regarding deployment. To that extent, the trial court
erred in its interpretation of the statute.14 We therefore reverse the order as to the
14 The trial court’s statements in open court support this interpretation. When Father’s counsel asked
for clarification as to the denial of limited contact with Jay, the trial court stated “I am finding that
his prior order is binding because I’m not finding that circumstances require the modification of that,
and therefore I cannot change that order. That does not prohibit [Mother] from allowing [Jay] to go.
It’s just that there is a prior order that is specifically talking about the custodial responsibility of the
child in the event of deployment, and I’m finding that that is binding on this court, and I’m not going
to change it.”
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Opinion of the Court
denial of limited contact as to Jay and remand for entry of an order addressing limited
contact. If the trial court determines that Jay does not have a “close and substantial
relationship” with Stepmother or his step and half siblings, or if it determines that
limited contact would be contrary to his best interests, the trial court may enter a
new order denying Father’s request for limited contact. Since the trial court did not
make these specific findings or conclusions based upon its interpretation of Jay’s
order and North Carolina General Statute § 50A-373(1), the trial court should do so
on remand. In addition, the trial court may in its discretion receive additional
evidence limited to this issue on remand. If the trial court orders limited contact on
remand, after making appropriate findings of fact, it may set the schedule for the
limited contact in its discretion and is neither required nor prohibited from following
either the schedule granted to Father in Jay’s order or the same limited contact
schedule as granted for Elizabeth. The trial court may consider Jay’s age and needs
as well has his, Mother’s, and Stepmother’s schedules, and any other factors relevant
to establishing the times for limited contact with Stepmother.
VII. Time Limit
Father’s last argument raises a procedural issue. He argues the trial court
erred by limiting each side to 20 minutes for presentation of their evidence and
arguments, and “[t]his amount of time was insufficient for the Plaintiff-Appellant to
open, submit evidence with more than one witness, cross-examine the Defendant-
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Opinion of the Court
Appellee, and close in this hearing.” However, as Mother points out, Father’s counsel
did not object to the time limitations or request additional time before the trial court.
She also notes that Father did not use all of the 20 minutes allotted to him, nor did
he attempt to offer affidavits or other documentary evidence in addition to
Stepmother’s testimony.
“[T]he manner of the presentation of evidence is a matter resting primarily
within the discretion of the trial judge, and his control of the case will not be disturbed
absent a manifest abuse of discretion.” Wolgin v. Wolgin, 217 N.C. App. 278, 283, 719
S.E.2d 196, 199 (2011) (quoting State v. Harris, 315 N.C. 556, 562, 340 S.E.2d 383,
387 (1986)) (affirming denial of appellant’s motion for a new trial where the trial court
limited the presentation of evidence when “(1) the length of the trial was discussed at
pre-trial conferences and both parties agreed to a two-day trial; (2) the court made
inquiry concerning the ability of both parties to present evidence within a two-day
time frame and neither party objected during pre-trial conferences; (3) the court made
several references to the time constrictions during the trial; and (4) at the close of
Defendant’s evidence, Defendant made no objection to time limits enforced by the
trial court on the second day of trial”). We also note that this hearing was held on an
expedited basis for purposes of entering a temporary order, and the trial court may
take these factors into account when setting time limits for the hearing. Because
Father did not make a timely request for additional time for presentation of his case
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Opinion of the Court
prior to or during the hearing, this issue is deemed abandoned and cannot be raised
for the first time on appeal. N.C. R. App. P. 10(a)(1).
VIII. Conclusion
We affirm the trial court’s order as to Elizabeth, but we remand for the trial
court to add Stepmother as a party to this action “until the grant of limited contact is
terminated” under North Carolina General Statute § 50A-375(b) and to enter an
order granting limited contact with Jay to Stepmother, unless the trial court
determines that Jay does not have a “close and substantial relationship” with
Stepmother or that limited contact would be contrary to his best interests. The trial
court may in its sole discretion receive evidence on remand relevant to this
determination only or it may enter an order based upon the current record.
AFFIRMED IN PART AND REMANDED.
Judges HAMPSON and YOUNG concur.
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