Whitman v. Kiger

Judge Wynn

dissenting.

I agree with Judge Graham’s interpretation of N.C. Gen. Stat. § 50-13.4 (1995). Contrary to the majority opinion, I believe that the absurd result would be to hold grandparents primarily liable for grandchild support under N.C. Gen. Stat. § 50-13.4 (1995) because (1) the statute is ambiguous and (2) clearly, the Legislature did not intend for grandparents to be liable for grandchild support when they have no corresponding presumptive rights to visitation and custody of their grandchildren.11 dissent.

The terms of N.C. Gen. Stat. § 50-13.4 setting forth grandparents’ obligations to support grandchildren conflict. One part of the statute provides that a parent of an unemancipated minor child who is the parent of a child shares primary liability for the grandchild if either of the parents were under 18 at the time of the child’s conception until both minor parents reach the age of 18. Yet, another part provides that a judge may not enter an order requiring a person who is not the parent of child to pay support unless there is evidence that the person has voluntarily assumed the obligation of support in writing. Therefore, in a case like this one, where the grandparents have not assumed such written responsibility, it is not clear under the terms of the statute whether they share primary responsibility for the support of the child.

Under the Session Laws of 1995, the General Assembly added the statutory provision relating to a grandparent’s primary liability for *52support of a grandchild when either of the parents are unemancipated minors. Thereafter, in Pott v. Pott, 126 N.C. App. 285, 484 S.E.2d 822 (1997), this Court stated:

[It] is beyond question this jurisdiction will not impose the burden of child support on a non-biological parent who has not voluntarily assumed such an obligation. See Duffey v. Duffey, 113 N.C. App. 382, 384-385, 438 S.E.2d 445, 447 (1994); State v. Ray, 195 N.C. App. 628, 629, 143 S.E. 216, 216 (1928). Indeed, the General Assembly has expressly recognized “the [trial] judge may not order support to be paid by a person who is not the child’s parent. .. absent evidence and a finding that such person .. . has voluntarily assumed the obligation of support in writing.” N.C. Gen. Stat. § 50-13.4(b) (1995).

Id. at 290, 484 S.E.2d at 826.

As this Court recognized in Pott, the plain language of N.C. Gen. Stat. § 50-13.4 shows that our Legislature intended to establish that in this State, the duty of support of a child can be imposed upon a non-parent only when that person has voluntarily assumed this obligation. Indeed, it would be absurd to hold that grandparents must provide support for grandchildren without any presumptive rights of custody, care and control of the child in their favor.2 See Duffey, 346 N.C. at 83, 484 S.E.2d at 537.

In North Carolina, grandparents have very limited rights to sue for custody or visitation of a grandchild, and they do not start with the presumption that they should be entitled to custody or visitation, as do natural parents. Although our State no longer follows the common law rule that grandparents have no custody or visitation rights to their grandchildren, our Legislature has determined that grandparents may seek custody or visitation in only the few limited circumstances provided by N.C. Gen. Stat. §§ 50-13.1(a), 50-13.2A, 50-13.2(bl), and 50-13.5(j). (For a more detailed description of these statutes, see Montgomery v. Montgomery, 136 N.C. App. 435, 524 S.E.2d 360 (2000).) In general, grandparents still have no automatic *53right to custody or visitation with grandchildren, and there is no provision for custody or visitation rights even when a grandparent must assume primary financial responsibility for a grandchild. ■

Further, the consent of grandparents who do not have custody of a grandchild is not required before a parent may give the grandchild up for adoption. Moreover, it would appear that grandparents do not have this right even in a case like the one sub judice in which the majority holds that the grandparents are primarily liable for their grandchild’s support.

If a grandparent does receive custody of a grandchild, he or she stands in loco parentis to the grandchild and has voluntarily assumed the obligation of support. But no right to custody is recognized for grandparents in our State solely on the basis that a parent of the grandchild is a unemancipated minor. Therefore, without the right to custody it would be unreasonable to impose the obligation of support upon a grandparent simply because his or her child is an une-mancipated minor who has paxented a child. See Price v. Howard, 346 N.C. 68, 84, 484 S.E.2d 528, 537 (1997) (holding that the right to custody should accompany the duty of support under N.C. Gen. Stat. § 50-13.4).

Since N.C. Gen. Stat. § 50-13.4 is an ambiguous statute, I would defer to our Legislature to set forth whether grandparents should be liable for grandchild support when they have no corresponding presumptive rights to visitation and custody of their grandchildren.

Accordingly, I dissent.

. Under the majority’s interpretation, the amount of support to be paid by grandparents found “primarily” liable for grandchild support under N.C. Gen. Stat. § 50-13.4 would presumably be determined by assessing the grandparents’ ability to pay under the Child Support Guidelines. It is reasonable to assume that support payments based on the grandparents’ income would almost certainly be higher than payments based on the income of their minor child. And of course, in instances where the grandparents’ income exceeds $180,000, the Child Support Guidelines would not apply; instead, the trial judge would be allowed to award an amount in excess of that allowed by the Guidelines.

. It should be noted that while the loss of custody does not relieve a parent of his or her duty to support a child, N.C. Gen. Stat. § 50-13, all natural parents have a constitutionally protected paramount right to custody, care and control of their child. See Peterson v. Rogers, 337 N.C. 397, 445 S.E.2d 901. Only a showing that a parent is unfit or has neglected the child’s welfare will result in a loss of these rights. See id. See also Troxel v. Granville, -U.S.-, 120 S. Ct. 2054 (2000) (holding that parents have a fundamental right to make decisions concerning the custody, care and control of their children).