An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NO. COA13-1067
NORTH CAROLINA COURT OF APPEALS
Filed: 5 August 2014
MARK W. ANDREWS,
Plaintiff,
v. Wake County
No. 08 CVD 15341
JENNIFER M. PARRISH,
Defendant.
Appeal by defendant from orders entered 11 January 2010, 27
September 2010, 2 December 2011, 10 January 2012, and 27
December 2012 by Judge Anna E. Worley in Wake County District
Court. Heard in the Court of Appeals 19 February 2014.
No brief filed on behalf of plaintiff-appellee.
Schiller & Schiller, PLLC, by David G. Schiller, for
defendant-appellant.
GEER, Judge.
Defendant Jennifer M. Parrish appeals from the trial
court's Permanent Custody Order, granting joint legal custody of
the parties' minor child "Lisa" to defendant and plaintiff Mark
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W. Andrews and primary physical custody to plaintiff.1
Defendant's arguments on appeal are founded almost entirely on
defendant's contention that the trial court should have found
her evidence more credible than that of plaintiff. Because we
may not reweigh the evidence on appeal and the trial court's
findings of fact are binding if supported by competent evidence,
we affirm.
Facts
Plaintiff and defendant maintained a romantic relationship
and briefly lived together in 2005, but never married. After
their relationship ended, plaintiff moved to Texas for work-
related reasons. Their daughter Lisa was born on 28 August
2006. Plaintiff was initially skeptical that Lisa was his
daughter, but as soon as a paternity test established that he
was the father, he consistently sought a relationship with Lisa,
travelling from Texas to North Carolina to visit her.
Plaintiff filed for custody on 29 August 2008. On 13
January 2009, a temporary custody order was issued granting
joint legal custody and primary physical custody to defendant,
although the order provided a weekly visitation schedule for
1
For ease of reading and to protect the identity of the
minor child, we use the pseudonym "Lisa" throughout this
opinion.
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plaintiff. Six months later, in June 2009, defendant and Lisa
moved to Ohio due to a death in defendant's family.
On 11 January 2010, when Lisa was three years old, a
temporary custody order established a visitation schedule in
which Lisa would spend alternative periods of four weeks with
defendant in Ohio and four weeks with plaintiff in North
Carolina. Defendant was subsequently held in contempt of that
order, in an order entered 10 January 2011, for failing to
return Lisa to plaintiff on 6 August 2010.
In November 2011, plaintiff contacted the Superintendent of
Lisa's elementary school in Ohio to express concerns about
Lisa's school attendance, her education, and transition issues.
In response to those concerns, Lisa began seeing a therapist,
Katie Niemezura. During a therapy session that took place at
defendant's home in Ohio on 25 November 2011, Lisa told Ms.
Niemezura that plaintiff had touched her genital area during
bath time. Around the same time, defendant learned from the
mother of another minor child that the two children had engaged
in sexually inappropriate behavior with one another while
playing dress up. Sally McHugh, a social worker from the
Cuyahoga County Child Protection Services, interviewed Lisa on
29 November 2011 regarding the sexual abuse allegations and
found her to be credible.
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On 30 November 2011, an order was entered granting
defendant's motion for an ex parte emergency temporary custody
order based on allegations that plaintiff had sexually abused
Lisa. An interim temporary custody order was entered 2 December
2011, and an emergency temporary custody order was entered 10
January 2012. The orders provided that Lisa would reside with
plaintiff's mother when she returned to North Carolina and that
she would not be left alone with plaintiff or with any males
over the age of 10.
On 30 January 2012, Johnston County Department of Social
Services ("Johnston County DSS") filed a juvenile petition in
Johnston County district court alleging that Lisa had been
sexually abused by plaintiff. After numerous hearings, the
district court entered a juvenile adjudication order on 13 June
2012 dismissing the petition. The order contained 48 findings
of fact reciting the nature of the sexual abuse allegations and
summarizing the testimony and evidence presented at the
hearings.
Although the trial court found that "the evidence presented
suggests that [Lisa] has age-inappropriate sexual knowledge and
it hints strongly that she may have been sexually abused[,]" the
court also found that the allegations of sexual abuse arose
while Lisa was in the physical custody of defendant and after
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plaintiff filed a motion to have the custody schedule reviewed.
In addition, the court found that Ohio DSS's conclusion that
Lisa was more likely than not sexually abused was based on an
investigation "which did not include any interviews of the
Respondent Father, the father's family, the child's teacher in
NC, or any other collaterals involved in the child's life in NC
. . . ."
The Johnston County district court agreed with Dr. Robert
Aiello's assessment that the four-week custody rotation was not
in the best interest of Lisa and had caused her instability and
emotional distress and expressed concern that the case had been
pending in Wake County for more than four years without any
permanent custodial schedule entered. Ultimately, the Johnston
County district court found that "[n]otwithstanding the Court's
concern that the custodial arrangements established in Wake
County are not in the best interests of the child, based on the
evidence presented the Court cannot find as a fact that there is
clear, cogent, and convincing evidence that the child is abused
or neglected and the Petition should be dismissed."
The hearing on permanent custody was held in Wake County
district court on 17 and 18 September 2012, and the court
entered a Permanent Custody Order on 27 December 2012. Among
its 107 findings of fact, the court found that defendant had
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failed to show by a greater weight of the evidence that
plaintiff sexually abused the child and that both parents are
fit and proper parents to exercise legal and physical custody of
the minor. However, based in pertinent part upon its findings
that Lisa "did extremely well while in school in North Carolina"
and that "[i]n the event the minor child were to remain in the
State of Ohio in the custody of the Defendant, the Defendant is
not likely to promote a healthy and meaningful relationship
between the minor child and the Plaintiff[,]" the court
concluded that Lisa's best interests would be served by awarding
joint legal custody and primary physical custody to plaintiff.
Defendant timely appealed the Permanent Custody Order to this
Court.
Discussion
Defendant challenges several of the trial court's findings
of fact and argues that the trial court abused its discretion in
awarding primary physical custody to plaintiff. Our standard of
review is well established:
"In a child custody case, the trial court's
findings of fact are conclusive on appeal if
supported by substantial evidence, even if
there is sufficient evidence to support
contrary findings. Substantial evidence is
such relevant evidence as a reasonable mind
might accept as adequate to support a
conclusion. Unchallenged findings of fact
are binding on appeal. The trial court's
conclusions of law must be supported by
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adequate findings of fact."
Carpenter v. Carpenter, ___ N.C. App. ___, ___, 737 S.E.2d 783,
785 (2013) (quoting Peters v. Pennington, 210 N.C. App. 1, 13,
707 S.E.2d 724, 733 (2011)).
This Court reviews de novo whether the findings of fact
support the trial court's conclusions of law. Id. After
reviewing the findings of fact and conclusions of law, we review
the trial court's determination regarding the best interests of
the child for abuse of discretion. Mason v. Dwinnell, 190 N.C.
App. 209, 230, 660 S.E.2d 58, 71 (2008).
Findings of Fact and Conclusions of Law
Defendant first argues, citing Long v. Long, 160 N.C. App.
664, 588 S.E.2d 1 (2003), that the trial court's findings of
fact 28, 31, 34, 37, 48, 60, 61, 62, 63, 83, and 90 are mere
recitations of the evidence and are, therefore, inadequate.
"'There are two kinds of facts: Ultimate facts, and
evidentiary facts. Ultimate facts are the final facts required
to establish the plaintiff's cause of action or the defendant's
defense; and evidentiary facts are those subsidiary facts
required to prove ultimate facts. . . . An ultimate fact is the
final resulting effect which is reached by processes of logical
reasoning from the evidentiary facts . . . .'" Overcash v. N.C.
Dep't of Env't & Natural Res., 179 N.C. App. 697, 707-08, 635
-8-
S.E.2d 442, 449 (2006) (quoting Smith v. Smith, 336 N.C. 575,
579, 444 S.E.2d 420, 422-23 (1994)). Recitations of the
evidence may serve as evidentiary facts that lend support or
provide context for a trial court's ultimate facts.
Accordingly, "[t]here is nothing impermissible about describing
testimony, so long as the court ultimately makes its own
findings, resolving any material disputes." In re C.L.C.,
K.T.R., A.M.R., E.A.R., 171 N.C. App. 438, 446, 615 S.E.2d 704,
708 (2005), aff'd per curiam, 360 N.C. 475, 628 S.E.2d 760
(2006).
In Long, the findings were inadequate because the trial
court, by merely reciting the testimony, did not resolve the
conflicts in the evidence and actually find facts. 160 N.C.
App. at 668, 588 S.E.2d at 3. That is not the case here.
Finding of fact 90 states:
90. When the Defendant's son was
approximately eight (8) years old,
there were allegations concerning the
Defendant's son having sexually
inappropriate behavior with a four (4)
year old cousin. There has been
evidence received concerning sexually
inappropriate contact and/or play
between the minor child herein and her
friend, "Maria", while in the
Defendant's home. These allegations
arose primarily through reports from
the minor child, "Marie". These
allegations also arose in close
connection to the scheduled review
hearing in Wake County concerning the
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permanent schedule and concerning the
minor child's school schedule for
Kindergarten. The timing of these
allegations and the nature of the
reports coming from a minor child were
reflected in the Court's assessment
regarding the credibility and the
accuracy of the reports concerning the
sexually inappropriate contact between
the minor child and "Maria".
This finding appropriately recited certain allegations of sexual
abuse, but the trial court then resolved the dispute the
allegations raised by determining that they were not entitled to
much weight. Specifically, given "[t]he timing of these
allegations and the nature of the reports coming from a minor
child," the trial court questioned the "credibility and the
accuracy" of the evidence. In other words, finding of fact 90
explains the trial court's reasoning in deciding what weight to
give the evidence addressed in the finding.
Findings of fact 28, 31, 34, 37 and 48 summarize certain
behavior and testimony of defendant, findings 60 to 63 summarize
defendant's parenting and discipline of her teenage son Gary,
and finding 83 summarizes Lisa's Kindergarten teacher's
assessment of Lisa's ability to transition to her classroom on
the four week custody rotation. These findings are permissible
evidentiary findings that offer support for the trial court's
ultimate findings of fact found elsewhere in the order.
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Defendant next argues, citing Kerns v. Southern, 100 N.C.
App. 664, 397 S.E.2d 651 (1990), that findings 28, 31, 34, 37,
41, 83, 90, and 102 are impermissibly conclusory. In Kerns, the
trial court, after finding that the grandparents were fit and
proper persons to have the care, custody and control of the
minor children, found that it was in the best interest of the
children to award visitation rights to the minor children's
grandparents. Id. at 667, 397 S.E.2d at 652-53. This Court
held that "the conclusory statements are inadequate findings to
support the award of visitation rights to the grandparents."
Id., 397 S.E.2d at 652. In that case, there were no findings of
fact to support the trial court's conclusion that the visitation
with the grandparents was in the best interests of the child.
Here, defendant attempts to apply the reasoning of Kerns to
individual findings of fact. In this case, the trial court's
order contains 107 findings of fact. As explained above, some
of the findings are ultimate findings of fact in which the trial
court resolves disputes in the evidence. Such findings are not
"impermissibly conclusory" as long as they are adequately
supported by competent evidence in the record.
Defendant next argues that "[t]he trial court was bound by
the Johnston Order findings of fact on the grounds of issue
preclusion and N.C. Gen. Stat. § 7B-200(c)." Because defendant
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does not cite any authority in support of this contention, we
need not address this issue. See N.C.R. App. P. 28(b)(6).
Nevertheless, defendant has not pointed to any findings by
the trial court that are inconsistent with the Johnston County
order. Although defendant asserts that finding 82 that Lisa's
"behavior and performance at McGee's Crossroads Elementary
school has been normal and appropriate" and finding 83 that Lisa
"adjusted well to her classroom" apart from a few "days of
adjustment" are inconsistent with the Johnson County order's
finding that Lisa suffered from "[a]djustment disorder with
mixed emotional and conduct issues[,]" we do not believe that
these findings are necessarily inconsistent with one another.
Defendant's argument merely challenges the inferences that the
trial court may draw from the evidence. The trial court has the
discretion to determine the reasonable inferences to be drawn
from the evidence presented. See In re Hughes, 74 N.C. App.
751, 759, 330 S.E.2d 213, 218 (1985) ("The trial judge
determines the weight to be given the testimony and the
reasonable inferences to be drawn therefrom. If a different
inference may be drawn from the evidence, he alone determines
which inferences to draw and which to reject.").
Next, defendant argues that the trial court failed to
consider facts that were established due to plaintiff's failure
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to timely deny admissions that were served upon him pursuant to
Rule 36(a) of the Rules of Civil Procedure. "The Comment to
G.S. 1A-1, Rule 36 notes that '[i]n form and substance a Rule 36
admission is comparable to an admission in pleadings or a
stipulation drafted by counsel for use at trial, rather than to
an evidentiary admission of a party.'" Eury v. N.C. Emp't Sec.
Comm'n, 115 N.C. App. 590, 599, 446 S.E.2d 383, 388 (1994)
(quoting N.C.R. Civ. P. 36 cmt.)
"A judicial admission is a formal
concession which is made by a party in the
course of litigation for the purpose of
withdrawing a particular fact from the realm
of dispute. Such an admission is not
evidence, but it, instead, serves to remove
the admitted fact from the trial by formally
conceding its existence."
Id., 446 S.E.2d at 389 (internal citation omitted) (quoting
Outer Banks Contractors, Inc. v. Forbes, 302 N.C. 599, 604, 276
S.E.2d 375, 379 (1981)).
In this case, the trial court found in its 10 January 2012
interim temporary custody order that plaintiff was properly
served with the admissions on 5 October 2011 and failed to
respond or object within 30 days. The trial court deemed the
admissions conclusively established and incorporated them by
reference into the temporary order's findings. Defendant's
request for admissions included, in pertinent part, that
plaintiff uses corporal punishment on a weekly basis to
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discipline Lisa, that plaintiff's primary motivation for
pursuing child custody is to disrupt Lisa's relationship with
defendant, and that he has significant untreated emotional
problems, including borderline personality disorder,
narcissistic personality disorder, and anger management
problems, that prevent him from being a loving father. In the
permanent custody order, entered over one year later, the trial
court did not make any findings regarding the admissions.
In G.R. Little Agency, Inc. v. Jennings, 88 N.C. App. 107,
112, 362 S.E.2d 807, 811 (1987), this Court addressed a similar
argument to the one defendant makes here. In G.R. Little
Agency, the plaintiff contended that the trial court erred, in a
bench trial, in concluding that the defendant was not in a
partnership with the defendant's ex-husband. Id. at 110, 362
S.E.2d at 810. The plaintiff argued, like defendant in this
case, that "the trial court committed prejudicial error by
giving only slight weight to matters contained within
plaintiff's request for admissions [pursuant to Rule 36], these
matters having been deemed admitted by defendant's failure to
respond." Id. at 111-12, 362 S.E.2d at 811. This Court
rejected the plaintiff's argument, explaining:
Although plaintiff argues that these matters
[that were deemed admitted] conclusively
established a partnership, the trial court
stated at trial that the matters contained
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within the requests did not necessarily make
out a prima facie case of partnership and
elected to assign greater weight to the
testimony at trial. The trial court, when
sitting as trier of fact, is empowered to
assign weight to the evidence presented at
trial as it deems appropriate. Moreover,
even in the presence of evidence to the
contrary, if there is competent evidence to
support the trial court's findings and
conclusions, the same are binding on appeal.
In light of the substantiality of competent
evidence adduced at trial suggesting the
nonexistence of a partnership, we are not
persuaded by this argument.
Id. at 112, 362 S.E.2d at 811 (internal citations omitted).
Here, the admissions that one year prior to entry of the
permanent custody order plaintiff used corporal punishment to
discipline Lisa and had significant emotional issues do not
conclusively establish that plaintiff is an unfit parent or that
awarding plaintiff custody is not in the best interests of Lisa
at the time the permanent custody order was entered. Nor has
defendant pointed to any findings that directly contradict the
admissions. Indeed, with respect to corporal punishment, the
trial court acknowledged in one finding that "there were prior
allegations of the Plaintiff using spanking as a form of
punishment in the past, and said form of discipline is
inappropriate concerning a child who has been the subject of
allegations of abuse[,]" but additionally found that plaintiff
"testified . . . that he currently successfully disciplines the
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minor child primarily through getting on eye level with the
minor child and talking with her in a way that [is] appropriate
and suitable for a child of her age." The trial court did not
err in giving more weight to the evidence of the current state
of affairs than to plaintiff's admissions about his mental state
and actions prior to 2012.
Turning now to the issue of sexual abuse, defendant argues
that the trial court's ultimate finding of fact that "Defendant
has failed to show by a greater weight of the evidence that the
Plaintiff has abused or neglected the minor child," as well as
several of the evidentiary findings upon which this ultimate
finding is based, are not supported by competent evidence in the
record.
Findings of fact 25, 90, and 97 specifically address the
credibility and weight that the trial court attributed to the
evidence presented by defendant to support the allegations that
plaintiff sexually abused Lisa. As we have already held,
finding of fact 90 was a permissible finding that the timing and
nature of the allegations of sexual misconduct with another
minor child undermined the credibility and accuracy of those
reports. Similarly, finding of fact 25 -- that "[t]he reports
concerning these behaviors [that the child engaged in sexual
exploration with another minor child] and the way that the minor
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child was questioned about these behaviors by Social Services in
the State of Ohio were leading" -- explains why the trial court
attributed little weight to the results of the Ohio
investigation.
Defendant argues, however, that finding of fact 25 is not
supported by the record. Defendant asserts that a review of an
Ohio Activity Report shows that the child was asked open-ended
questions during her interview with the Ohio social worker.
Defendant, however, has not included the report in the record on
appeal. We, therefore, must assume that this finding is
supported by the Ohio Activity Report. See Potts v. Potts, 19
N.C. App. 193, 194, 198 S.E.2d 203, 204 (1973) ("Where there is
evidence offered before the trial court and appellant assigns as
error that the evidence does not support the findings of fact by
the trial judge, but does not include the evidence in the record
on appeal, we will presume the facts found are supported by
competent evidence.").
In finding of fact 97, the trial court explains how it
interpreted the expert testimony of Dr. Aiello who examined
Lisa. The trial court's findings regarding Dr. Aiello are as
follows:
96. During the course of her interview with
Dr. Robert Aiello, the minor child was
avoidant. The minor child did deny
that her father had touched her
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inappropriately and expressed that she
did not want to discuss the issue any
further. Dr. Aiello testified that if
he had had a sex offender evaluation to
consider, he would have considered it.
Based upon all of the evidence
presented to Dr. Aiello, he developed
three (3) hypotheses with regard to the
allegations of sexual abuse. No other
possibilities were examined. There
were facts and circumstances to support
each hypothesis. The hypotheses were
as follows:
a. [the child] was sexually abused in
the form of inappropriate sexual
touching with her father as the
alleged perpetrator;
b. [the child] was not sexually
abused. Her statements were the
result of family or other
influences on the maternal side of
this case; and
c. [the child] was sexually abused by
Mr. Andrews but is currently
recanting her statements because
of family or other influences on
the paternal side of this case.
97. Dr. Aiello did not know that the State
of Ohio had formed their case decision
concerning the allegations without ever
contacting the Plaintiff. At the time
that Dr. Aiello testified to this
Court, Dr. Aiello was further not aware
that the State of Ohio had changed
their case decision from a decision of
"indicated" for abuse to
"unsubstantiated" for abuse. Based
upon Dr. Aiello's involvement and
interview of all available witnesses,
Dr. Aiello could not render any
definitive opinion concerning the
likelihood of abuse and indicated that
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each of the three (3) hypotheses were
possible.
These findings are supported by substantial evidence in the
record. Although defendant correctly notes that no document
memorializing the Ohio case decision is in the record, Mr.
Robert Tarpey, a supervisor with the Child Protective Services
Investigation and Assessment Unit at Johnston County DSS,
testified without objection that the Ohio case had been
overturned because the abuse was unsubstantiated.
Additionally, Dr. Aiello was specifically asked how the
Ohio case decision would impact his analysis.
Q If the finding of indicated were
later changed to unsubstantiated, would that
make a difference in the strength, if any,
you would give for hypothesis A?
A That's a difficult question. What
that would do is tend to support the other
hypotheses. I believe that's the best
answer I can give. And in particular, what
it would give is support hypothesis B. It
could be cited as that.
Dr. Aiello's testimony concluded that each of his three
hypotheses was possible, but he could not determine which
possibility was most likely. He did, however, state that if
Ohio had changed its case decision from "indicated" to
"substantiated," that would support the conclusion that the
sexual abuse never happened. Finding of fact 97, therefore,
attributes Dr. Aiello's inability to render a definitive opinion
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regarding which hypothesis was most likely to having incomplete
information regarding the Ohio investigation and points out
additional information, not known to Dr. Aiello at the time of
his testimony, that tends to support "hypothesis B" more than
the other possibilities.
Findings of fact 25, 90, and 97 show that the trial court
considered defendant's evidence but did not find that it proved
by the greater weight of the evidence that plaintiff sexually
abused Lisa. These findings are supported by competent evidence
and are, therefore, binding on appeal. Moreover, defendant does
not challenge the trial court's findings that Lisa recanted her
assertion that plaintiff inappropriately touched her, that the
child medical examination performed by the Johnston County DSS
"failed to corroborate that allegations of abuse and the minor
child did not disclose any abuse during the interviews conducted
as part of the CME," and that the Johnston County case alleging
sexual abuse and neglect was dismissed. All these findings, in
turn, support the trial court's ultimate finding that defendant
failed to show by the greater weight of the evidence that
plaintiff sexually abused Lisa.
Defendant additionally challenges several of the trial
courts findings regarding plaintiff and defendant's fitness as
parents and behavior during the proceedings, including: that
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defendant's hostile and evasive demeanor is contrary to her
contention that she has attempted to co-parent with plaintiff
and more consistent with plaintiff's testimony that defendant
has been hostile towards his efforts to form a meaningful
relationship with the child; that defendant instituted the
action in Ohio for the sole purpose of stopping plaintiff's
custodial rights established in North Carolina; that plaintiff
has maintained a steady and stable residence in North Carolina;
that plaintiff has employed appropriate daycare for the child;
that plaintiff has exercised appropriate discipline with the
child; and that defendant is not likely to promote a healthy and
meaningful relationship between the child and plaintiff.
All of these findings are supported by evidence in the
record. Defendant simply argues that the trial court erred in
overlooking certain evidence, in finding the plaintiff's
testimony more credible, or in drawing certain inferences from
the evidence. These arguments go to questions of the weight to
be afforded evidence and evaluations of credibility -- questions
that rest solely within the province of the trial judge. Phelps
v. Phelps, 337 N.C. 344, 357, 446 S.E.2d 17, 25 (1994) ("We note
that it is within the trial court's discretion to determine the
weight and credibility that should be given to all evidence that
is presented during the trial. A trial judge passes upon the
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credibility of the witnesses and the weight to be given their
testimony and the reasonable inferences to be drawn therefrom."
(internal quotation marks omitted)). "The fact that the trial
judge believed one party's testimony over that of the other and
made findings in accordance with that testimony does not provide
a basis for reversal in this Court." Woncik v. Woncik, 82 N.C.
App. 244, 248, 346 S.E.2d 277, 279 (1986).
After having reviewed the record and considered
defendant's arguments, we hold that the trial court's findings
of fact are supported by competent evidence. Because defendant
does not make any argument that the findings fail to support the
trial court's conclusions of law, we turn to defendant's
arguments regarding the best interests of the child.
Best Interests of the Child
We review the trial court's determination regarding the
best interests of the child for abuse of discretion. Mason, 190
N.C. App. at 230, 660 S.E.2d at 71. Here, the trial court found
that it is in the best interests of Lisa for the parties to
exercise joint legal custody and grant primary physical custody
to plaintiff. The trial court based this decision, in part,
upon its findings that:
31. The Defendant has previously denied
visitation to the Plaintiff, and the
Defendant has routinely sought to put
up barriers to the Plaintiff's rights
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to exercise visitation and to be a
meaningful part of the minor child's
life.
. . . .
104. In the event the minor child were to
remain in the State of Ohio in the
custody of the Defendant, the Defendant
is not likely to promote a healthy and
meaningful relationship between the
minor child and the Plaintiff.
This Court has held that whether a parent is likely to
follow custody and visitation orders and otherwise promote a
healthy relationship with the other parent is a proper
consideration when determining the best interests of a child:
In exercising its discretion in determining
the best interest of the child in a
relocation case, factors appropriately
considered by the trial court include but
are not limited to: the advantages of the
relocation in terms of its capacity to
improve the life of the child; the motives
of the custodial parent in seeking the move;
the likelihood that the custodial parent
will comply with visitation orders when he
or she is no longer subject to the
jurisdiction of the courts of North
Carolina; the integrity of the noncustodial
parent in resisting the relocation; and the
likelihood that a realistic visitation
schedule can be arranged which will preserve
and foster the parental relationship with
the noncustodial parent.
Ramirez-Barker v. Barker, 107 N.C. App. 71, 79-80, 418 S.E.2d
675, 680 (1992), disapproved of on other grounds by Pulliam v.
Smith, 348 N.C. 616, 501 S.E.2d 898 (1998).
-23-
Defendant argues, however, that this is not a relocation
case because she has lived with Lisa in Ohio for many years,
and, therefore, Ramirez-Barker does not apply. Defendant cites
no authority in support of this contention, and we see no reason
why the factors set forth in Ramirez-Barker cannot apply to this
case. We are unwilling to accept defendant's implicit argument
that it is immaterial in non-relocation custody cases whether a
parent is likely to follow custody and visitation orders and
otherwise promote a healthy relationship with the other parent.
Finally, defendant argues that the trial court abused its
discretion in ignoring unrefuted expert testimony of Dr. Aiello
and several other experts that plaintiff should only have
supervised visitation of Lisa. However, these recommendations
were predicated upon the possibility that plaintiff had sexually
abused Lisa. The trial court found that the evidence failed to
establish that plaintiff had sexually abused Lisa, and we have
held that this finding was supported by competent evidence.
Nevertheless, the trial court did not ignore the issues raised
by the experts' testimony, specifically finding that regardless
of the truth of the allegations, Lisa needs to continue to
receive therapy to deal with the issues presented in her life.
Under these circumstances, the trial court did not "ignore" the
expert testimony.
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The trial court found that Lisa has a meaningful
relationship with plaintiff's family in North Carolina, that
plaintiff demonstrated maturity and concern for the continuity
in the child's education, plaintiff has steady employment and
has maintained a steady and stable residence in North Carolina,
and Lisa has succeeded in school in North Carolina. In
contrast, the trial court found that defendant is unlikely to
foster a meaningful relationship between plaintiff and Lisa were
she to be awarded primary physical custody and has not
demonstrated a genuine effort to co-parent with plaintiff.
Under these circumstances, we cannot say that the trial court
abused its discretion in awarding primary custody to plaintiff.
Affirmed.
Judges ROBERT C. HUNTER and McCULLOUGH concur.
Report per Rule 30(e).