IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-444
Filed: 17 October 2017
Wake County, No. 15 CVD 3156
LEONORA MORIGGIA, Plaintiff,
v.
LINDA CASTELO, Defendant.
Appeal by plaintiff from order entered 4 January 2016 by Judge Anna Worley
in District Court, Wake County. Heard in the Court of Appeals 16 November 2016.
Hatch, Little & Bunn, LLP, by Justin R. Apple and Kathy H. Lucas, for
plaintiff-appellant.
Rik Lovett & Associates, by S. Thomas Currin II, for defendant-appellee.
STROUD, Judge.
Plaintiff Leonora Moriggia (“plaintiff”) appeals from the trial court’s order
granting defendant Linda Castelo (“defendant”)’s motion to dismiss under Rule
12(b)(1) and dismissing plaintiff’s complaint for lack of standing. On appeal, plaintiff
argues that she has standing to maintain an action for custody and that defendant
acted inconsistently with her parental status by intentionally and voluntarily
creating a family unit and making plaintiff a de facto parent. Because the trial court’s
findings of fact do not support its conclusion that plaintiff has no standing to maintain
a custody action, we vacate the order and remand for further proceedings.
MORIGGIA V. CASTELO
Opinion of the Court
Background
Plaintiff’s complaint alleged that plaintiff and defendant were a lesbian couple
who never married but “were in a committed and loving relationship from January
2006 until October 2014[.]” The couple decided during the relationship to have a
child. Defendant was selected to carry the child because plaintiff had already
experienced a pregnancy when she gave birth to her biological daughter, Trisha,1
whom she brought into the relationship. Both parties’ eggs were harvested, but after
attempts at artificial insemination were unsuccessful, they agreed to use a donor
sperm and donor egg. On 11 June 2013, the minor child, Raven, was born.
The parties separated in October 2014, and on 11 March 2015, plaintiff filed
her complaint for child custody seeking joint temporary and permanent custody of
Raven. Defendant answered on 1 May 2015 with a motion to dismiss and alternative
counterclaim for child custody, seeking sole legal and physical custody. In her motion
to dismiss plaintiff’s complaint, defendant contended that plaintiff “is not a parent of
[Raven] either legally or biologically” and argued that she “does not have standing to
bring and maintain a child custody action against Defendant, who is [Raven]’s legal
and physical mother.” The hearing on temporary custody and defendant’s motion to
dismiss was held on 21 July 2015, and the trial court took the motion to dismiss under
1 We use pseudonyms throughout to protect the identity of the minor children.
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Opinion of the Court
advisement. On 4 January 2016, the trial court entered an order dismissing
plaintiff’s complaint for child custody for lack of standing.
The trial court’s order found, in relevant part, that:
7. Plaintiff and Defendant were involved in a romantic,
homosexual relationship and considered each other to be
life partners.
8. Plaintiff and Defendant lived together from January
2006 until December 2008, at which time they separated,
and then resumed living together from January 2010 until
October 2014.
9. The parties broke off their relationship in October of
2014 but continued to live together in the same residence
until Plaintiff left on February 14, 2015.
10. Plaintiff filed this custody action on March 11, 2015.
11. When the parties briefly separated in December of
2008 . . . Defendant would have visitation with [Trisha] and
[Trisha] would frequently spend the night with Defendant
at her residence.
12. During the parties’ relationship they discussed their
family and together planned on adding at least one child to
their family.
13. Beginning in 2012, the parties attended
appointments at Carolina Conceptions where they
discussed in vitro fertilization. Both parties jointly signed
a contract with Carolina Conception for the conception of
the minor child, [Raven], in this matter.
14. The parties discussed using artificial insemination
as a means of getting pregnant and it was agreed
Defendant would go through the pregnancy. . . .
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Opinion of the Court
15. When the Defendant was determined to be infertile,
the Plaintiff’s eggs were harvested in an attempt to
artificially inseminate the Defendant; however, the
Plaintiff did not produce enough eggs for the procedure.
16. The parties then discussed and researched adoption,
both attending an informational meeting; however, shortly
thereafter agreed that the adoption process was not for
them because of the cost and potential for the biological
parent to attempt involvement with any potential adoptive
child. Plaintiff and Defendant nonetheless decided to
continue seeking to enlarge their family. The parties then
went back to Carolina Conceptions and elected to proceed
with the artificial insemination process using donor sperm
and donor egg through the anonymous process.
17. Defendant ultimately became pregnant via in vitro
fertilization by a donor sperm and a donor egg. Plaintiff
and Defendant share no genes with the child and have a
completely different genetic code.
....
19. Once the parties became aware that Defendant was
pregnant, they made an announcement to [Trisha]
welcoming her into the “Big Sister’s Club.” . . . . Defendant
told [Trisha] that she was [Raven]’s big sister.
20. On August 29, 2012, Defendant was listed as
Recipient and Plaintiff as “Partner”, collectively they were
referred to as “Recipient Couple”. The parties acknowledge
in the Contract that any child resulting from the procedure
will be their legitimate child in all aspects, including
descent and distribution as our child. . . .
21. Plaintiff contended that her $5,575 check made out
to Carolina Conceptions was a contribution to the $20,000
overall cost and was intended by Plaintiff to create a family
with Defendant. She also testified that she owed the
Defendant these funds as satisfaction of an outstanding
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Opinion of the Court
debt Plaintiff owed to Defendant.
22. Defendant contends that the $5,757 [sic]2 was in
satisfaction of an outstanding debt Plaintiff owed
Defendant.
23. The parties also pulled a combined $18,000 out of
their 401(k) retirement accounts combined to pay the costs
of the artificial insemination procedure.
....
25. Prior to the pregnancy, the Defendant intended that
Plaintiff serve as a parent to [Raven]. At the time of
[Raven]’s birth, Defendant had changed her mind as to
Plaintiff’s role as a parent to [Raven]. She began excluding
Plaintiff from any parenting role, insisting that she, alone,
be treated as [Raven]’s mother.
26. The parties planned the baby’s nursery together,
Plaintiff’s friend purchased [Raven’s] crib. [Raven’s]
dresser and other furniture and some clothing for the baby
were purchased using a gift card received from the baby
showers.
27. There were two baby showers. One shower was held
in New Jersey on Defendant’s behalf, and Plaintiff and
Defendant’s family contributed financially toward the
shower. Half of the people in attendance were Plaintiff’s
family and friends.
....
30. Just before Defendant went into labor, Plaintiff and
her mother thoroughly cleaned the family’s home to get it
ready for [Raven]’s arrival. The Defendant posted a note
2 This appears to be a typo in the trial court’s order, as the previous finding and the hearing
transcript indicate that plaintiff’s check was for $5,575.00, not $5,757.00. We also note that findings
21 and 22 are not findings of fact but are recitations of each party’s contentions regarding a disputed
fact.
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Opinion of the Court
thanking her “mother in law” for assisting in the cleaning
for “our daughter”.
31. During the artificial insemination process with
Carolina Conceptions, Plaintiff would be included in the
email communications. Defendant would refer to Plaintiff
and Defendant as “We” when inquiring about the next
steps and would sign the email as “Linda & Lee”.
32. The Plaintiff attended all of the Defendant’s
ultrasound and other prenatal appointments unless the
appointment was just to take her blood pressure since she
was an at risk pregnancy.
33. The Plaintiff and Defendant both attended the
recipient classes required by Carolina Conceptions and
parenting classes during Defendant’s pregnancy.
34. During Defendant’s pregnancy she sent an e-mail to
Plaintiff indicating how much she loved Plaintiff and
couldn’t wait to raise the “niblet” together.
35. Plaintiff has a bond with [Raven]. [Trisha] also has
a bond with [Raven].
36. Defendant encouraged a sisterhood between the
children, [Trisha and Raven], and the sisterhood was to be
permanent and ongoing well beyond the parties’ life time.
37. The Defendant once gave Plaintiff a Mother’s Day
card addressed to “Leemo” on [Raven]’s behalf.
38. In a text, Defendant assured Plaintiff after they
separated that she would continue to see [Raven] as she
was her “mama too”.
39. Plaintiff and [Trisha] lived with Defendant during
conception, birth and for the first twenty (20) months of
[Raven]’s life.
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Opinion of the Court
40. Only the Defendant’s name appeared on the Birth
Certificate on the announcement of the child’s birth.
41. After the birth of [Raven], Defendant sent an email
to Carolina Conceptions thanking them on behalf of
[plaintiff], Big Sister [Trisha] and Baby [Raven]. She
states, “[Plaintiff, Trisha and I] are so elated to have her as
part of our extended family,” and they have “made us the
happiest family on earth.” Pictures were then included of
the birth announcement, Plaintiff holding [Raven] and
Defendant and [Raven].
....
43. Plaintiff is not listed as a parent on the child’s Birth
Certificate.
44. The Plaintiff was present during Defendant’s labor
at Rex Hospital. . . .
45. The Plaintiff was identified as “co parent” to [Raven]
by the hospital and Defendant did not dispute the
identification.
46. The Defendant identified Plaintiff on her General
Consent to admission when being admitted for delivery and
identified her as “life partner”.
47. Upon birth, Plaintiff was excluded so Defendant
could bond with the child without Plaintiff present.
48. After the birth of [Raven], Defendant made postings
on social media with pictures of Plaintiff, [Raven and
Trisha], referring to them as her family.
49. The Plaintiff knew of a nanny for [Raven] through a
classmate of [Trisha’s] and the parties met with and
interviewed Angela Lopez together for the position. Angela
Lopes [sic] was hired as [Raven’s] nanny and served in the
capacity until late December of 2014.
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Opinion of the Court
50. [Raven’s nanny] was under the belief that both
parties were equally responsible for [Raven]. . . . It was not
until after the parties broke up in October that Defendant
approached her and asked that she communicate with her
directly.
51. Subsequent to [Raven]’s birth, the Plaintiff was not
held out as [Raven]’s parent and the Defendant did not
cede decision making authority.
52. The Plaintiff did not create a permanent parent-like
relationship with the minor child, only a “significant
loving, adult care taker” relationship, not that of a parent.
53. No steps were made by the parties to make the
family unit permanent. The parties were not married in
this or any other state.
54. After the birth of [Raven], Plaintiff and Defendant
discussed that should Plaintiff pass away, Defendant
would care for [Raven and Trisha]. Should Defendant pass
away, Plaintiff would care for [Raven and Trisha] and
should both parties pass away leaving behind their
children, the Defendant’s sister, Judy, would care for both
[Raven and Trisha].
55. Defendant paid for daycare costs exclusively from
her own funds from the birth of the child until the parties
separated.
56. Other than [Raven’s] daycare costs incurred by
Defendant and [Trisha’s] afterschool costs incurred by
Plaintiff, the parties equally contributed to the household
finances.
57. Defendant insisted on providing care and bonding
with her child when she was home, to the exclusion of
Plaintiff.
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Opinion of the Court
....
59. After the parties ended their romantic relationship,
the Defendant placed [Raven] in a daycare facility and
listed Plaintiff as an emergency contact until January 9,
2015. Defendant did give access to her sisters.
60. Plaintiff was not involved in the preparation of the
child’s baptism, though she did provide [Trisha’s] baptism
gown for [Raven]. While the Plaintiff was in attendance,
she was not a part of the ceremony.
....
62. Defendant selected [Raven’s] pediatrician and made
all decisions for daycare, medical care and pediatrician
choices. The Plaintiff attended at least one well-baby visit
and took [Raven] to the doctor with Defendant, when she
was sick. Plaintiff was listed as an emergency contact on
the pediatrician records and “Partner” as relationship to
Defendant.
63. During the relationship Defendant was the primary
caretaker for [Raven].
64. [Raven] and [Trisha] had a special and loving bond
as sisters and were close to each other.
65. Both parties contributed to the household expenses.
....
68. One of the reasons for the break-up was Defendant’s
insistence upon being the primary parent to the child. . . .
69. After separation the Plaintiff mailed monthly checks
for $300 to the Defendant for “Child Support” which were
never cashed by the Defendant and were mailed back to the
Plaintiff.
70. Defendant did not allow Plaintiff visitation after
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Opinion of the Court
both parties separated, nor was there any mention of a
visitation schedule for the Plaintiff to see the child at the
time of separation.
71. The Defendant took no steps to make the Plaintiff
the caregiver of the child, should the Defendant predecease
the child.
72. On March 6th, 2015, the Defendant sent Plaintiff a
text stating that since Plaintiff “threatened to sue for
visitation” she could never let her take her daughter
without her being present.
73. After March, 2015, the Defendant’s intent was that
the Plaintiff no longer be involved in the child’s upbringing.
74. While prior to the birth, the Defendant intended for
the parties to equally participate in the care for [Raven], at
the time of her birth, Defendant’s intentions changed.
75. Prior to the child’s birth, the parties planned
together for the minor child.
76. At all times relevant to custody, however, that is, at
all times after the birth of the child, the Defendant
demonstrated her desire to be the child’s sole parent.
77. The Court finds that there was no voluntary creation
of a family unit, or a permanent parent-like relationship;
nor does the Court find that the Defendant ceded her
parental authority to the Plaintiff for any manner.
The trial court then concluded:
1. The parties are properly before the Court, and the
Court has jurisdiction over the subject matter, custody, of
this action and has personal jurisdiction of the parties to
this action.
2. However, Plaintiff does not have standing to raise
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Opinion of the Court
this matter, and it should be dismissed pursuant to Rule
12(b)(1). Similarly, since she has failed to establish her
standing to raise the matter, she has failed to state a claim
upon which relief can be granted.
....
6. Despite some isolated instances of Defendant
acknowledging Plaintiff as a parent to [Raven], following
the birth of the minor child, the Defendant did not cede
parental authority to the Plaintiff.
7. The Plaintiff was a loving caretaker for the minor
child, had a substantial relationship with [Raven], but was
not intended by Defendant to be a parental figure.
....
9. There were no acts inconsistent with the
Defendant’s parental rights, such as to grant Plaintiff the
right to claim third party custody.
Plaintiff timely filed her notice of appeal to this Court.
Discussion
On appeal, plaintiff raises several issues, beginning with whether plaintiff has
standing to maintain an action for child custody and the trial court erred in
dismissing her complaint.
I. Preliminary matters
Before we address the substantive issues raised by plaintiff, we note the trial
court’s order does not indicate the standard of proof for any of its findings of fact, nor
does the transcript assist us in determining if the trial court relied upon clear, cogent
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Opinion of the Court
and convincing evidence for any of the findings. Neither party has raised this issue
on appeal, but since it is integral to the jurisdictional determination and since we are
remanding this case for further proceedings, we note that on remand the trial court
must be clear that it is applying the “clear, cogent, and convincing” standard. “[A]
trial court’s determination that a parent’s conduct is inconsistent with his or her
constitutionally protected status must be supported by clear and convincing
evidence.” Adams v. Tessener, 354 N.C. 57, 63, 550 S.E.2d 499, 503 (2001). See also
Heatzig v. MacLean, 191 N.C. App. 451, 460, 664 S.E.2d 347, 354 (2008) (“The
evidence required to show that a parent has acted inconsistently with her
constitutionally protected parental status must be clear, cogent and convincing.”). Of
course, we realize that here, the trial court concluded that defendant’s conduct was
not inconsistent with her protected status as a parent. But the difficulty in reviewing
this order comes in part from the fact that the findings the trial court made -- if made
by clear, cogent, and convincing evidence -- do not support the trial court’s conclusion.
On remand, the trial court shall make findings based upon this standard of proof and
should affirmatively state the standard of proof in the order on remand.
In our analysis below, we will therefore review de novo the trial court’s
conclusion on lack of subject matter jurisdiction based upon the uncontested findings
of fact, while recognizing that if those findings were not based upon the proper
standard of proof, the findings would not be sufficient as a matter of law to show that
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Opinion of the Court
defendant’s actions were “inconsistent with his or her protected status” and could not
support plaintiff’s standing. And although there is no affirmative statement of the
standard in the order, we also have no reason to believe that the trial court failed to
use the correct standard of clear, cogent, and convincing evidence for the findings. As
a practical matter, if we remanded only for the trial court to state the standard it
actually used in this order, thus requiring another appeal from the revised order, we
would delay a final disposition of this custody matter for a long time, and that delay
would not be in the best interest of the child. We will thus review the conclusions of
law based upon the findings as they stand and as if they were based upon clear,
cogent, and convincing evidence.
II. Standing to Maintain Action for Child Custody
Plaintiff argues the trial court erred by concluding that she did not have
standing to bring a custody claim and dismissing her complaint under Rule 12(b)(1).
We first note that the order makes contradictory conclusions of law on subject matter
jurisdiction, since standing is an issue of subject matter jurisdiction:
Based upon the foregoing findings of fact and upon the
stipulation of the parties in open court, the court
CONCLUDES AS A MATTER OF LAW:
1. The parties are properly before the Court, and the Court
has jurisdiction over the subject matter, custody, of this
action and has personal jurisdiction of the parties to this
action.
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Opinion of the Court
2. However, Plaintiff does not have standing to raise this
matter, and it should be dismissed pursuant to Rule
12(b)(1). Similarly, since she has failed to establish her
standing to raise the matter, she has failed to state a claim
upon which relief can be granted.
(Emphasis added).
Subject matter jurisdiction is the basis for motions under Rule 12(b)(1):
“Standing concerns the trial court’s subject matter jurisdiction and is therefore
properly challenged by a Rule 12(b)(1) motion to dismiss. Our review of an order
granting a Rule 12(b)(1) motion to dismiss is de novo.” Fuller v. Easley, 145 N.C. App.
391, 395, 553 S.E.2d 43, 46 (2001) (citations omitted). See also Aubin v. Susi, 149
N.C. App. 320, 324, 560 S.E.2d 875, 878-79 (2002) (“Standing is a necessary
prerequisite to a court’s proper exercise of subject matter jurisdiction. Therefore,
issues pertaining to standing may be raised for the first time on appeal, including sua
sponte by the Court.” (Citations omitted)).
Although the trial court first concluded that it had jurisdiction over the
“subject matter, custody,” it then concluded that “[p]laintiff does not have standing
to raise this matter, and it should be dismissed pursuant to Rule 12(b)(1).” But in
any event, we review standing de novo, so we may resolve this contradiction based
upon the trial court’s findings of fact. See Fuller, 145 N.C. App. at 395, 553 S.E.2d at
46 (“Our review of an order granting a Rule 12(b)(1) motion to dismiss is de novo.”
(Citation omitted)).
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Opinion of the Court
Under N.C. Gen. Stat. § 50-13.1(a) (2015), “[a]ny parent, relative, or other
person, agency, organization or institution claiming the right to custody of a minor
child may institute an action or proceeding for the custody of such child[.]” See also
Mason v. Dwinnell, 190 N.C. App. 209, 219, 660 S.E.2d 58, 65 (2008) (“Standing in
custody disputes is governed by N.C. Gen. Stat. § 50-13.1(a) (2007), which states that
any parent, relative, or other person, agency, organization or institution claiming the
right to custody of a minor child may institute an action or proceeding for the custody
of such child. Nevertheless, as with N.C. Gen. Stat. § 50-13.2, our courts have
concluded that the federal and state constitutions place limitations on the application
of § 50-13.1.” (Citation, quotation marks, brackets, and ellipses omitted)).
In Ellison v. Ramos, 130 N.C. App. 389, 394, 502 S.E.2d 891, 894 (1998), this
Court held “that a relationship in the nature of a parent and child relationship, even
in the absence of a biological relationship, will suffice to support a finding of
standing.” This Court clarified in Ellison that
we confine our holding to an adjudication of the facts of the
case before us: where a third party and a child have an
established relationship in the nature of a parent-child
relationship, the third party does have standing as an
“other person” under N.C. Gen. Stat. § 50-13.1(a) to seek
custody.
Id. at 395, 502 S.E.2d at 895. See also Smith v. Barbour, 154 N.C. App. 402, 408, 571
S.E.2d 872, 877 (2002) (“Both parents and third parties have a right to sue for
custody. In a custody dispute between a parent and a non-parent, the non-parent
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must first establish that he has standing, based on a relationship with the child, to
bring the action.” (Citation omitted)).
In Mason, this Court elaborated on Ellison further and noted that
despite the statute’s broad language, in the context of a
third party seeking custody of a child from a natural
(biological) parent, our Supreme Court has indicated that
there are limits on the “other persons” who can bring such
an action. A conclusion otherwise would conflict with the
constitutionally-protected paramount right of parents to
custody, care, and control of their children.
Mason, 190 N.C. App. at 219, 660 S.E.2d at 65 (citations and quotation marks
omitted). The Mason Court found “no serious dispute that Mason established that
she had standing under N.C. Gen. Stat. § 50-13.1,” where her complaint alleged that
she jointly raised the child with her domestic partner Dwinnell, that they signed an
agreement acknowledging Mason as a “de facto” parent, that she had formed a
parenting relationship with the child, and that the minor child had spent his life with
both Mason and Dwinnell providing emotional and financial support and care. Id. at
220, 660 S.E.2d at 65.
This Court has elaborated further on standing in custody disputes, explaining:
As in many custody cases, the struggling of adults
over children raises concern regarding the consequences of
the rulings for the children involved. Our General
Assembly acted on this concern by mandating that disputes
over custody be resolved solely by application of the “best
interest of the child” standard. Nevertheless, our federal
and state constitutions, as construed by the United States
and North Carolina Supreme Courts, do not allow this
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Opinion of the Court
standard to be used as between a legal parent and a third
party unless the evidence establishes that the legal parent
acted in a manner inconsistent with his or her
constitutionally-protected status as a parent. No litmus
test or set of factors can determine whether this standard
has been met. Instead, the legal parent’s conduct would, of
course, need to be viewed on a case-by-case basis[.]
Estroff v. Chatterjee, 190 N.C. App. 61, 63-64, 660 S.E.2d 73, 75 (2008) (citations,
quotation marks, and footnote omitted). Thus, to maintain a claim for custody on this
basis, the party seeking custody must allege facts demonstrating a sufficient
relationship with the child and then must demonstrate that the parent has acted in
a manner inconsistent with his or her protected status as a parent. See, e.g., Heatzig,
191 N.C. App. at 454, 664 S.E.2d at 350 (“If a legal parent (biological or adoptive) acts
in a manner inconsistent with his or her constitutionally-protected status, the parent
may forfeit this paramount status, and the application of the ‘best interest of the
child’ standard in a custody dispute with a non-parent would not offend the Due
Process Clause.”).
This Court also noted in Heatzig that “in order to constitute acts inconsistent
with a parent’s constitutionally protected status, the acts are not required to be ‘bad
acts’ that would endanger the children.” Id. at 455, 664 S.E.2d at 351. Similarly, in
Boseman v. Jarrell, our Supreme Court explained:
A parent loses this paramount interest [in the
custody of his or her children] if he or she is found to be
unfit or acts inconsistently with his or her constitutionally
protected status. However, there is no bright line beyond
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which a parent’s conduct meets this standard. . . .
[C]onduct rising to the statutory level warranting
termination of parental rights is unnecessary. Rather,
unfitness, neglect, and abandonment clearly constitute
conduct inconsistent with the protected status parents may
enjoy. Other types of conduct can also rise to this level so
as to be inconsistent with the protected status of natural
parents.
Boseman v. Jarrell, 364 N.C. 537, 549-50, 704 S.E.2d 494, 503 (2010) (citations,
quotation marks, brackets, and ellipses omitted).
Turning to the order on appeal, the trial court’s uncontested findings of fact --
which we are treating as being based upon clear, cogent, and convincing evidence as
discussed above -- show that plaintiff and defendant were in a committed relationship
and jointly decided to have a child and to raise that child together. They continued
to live together as a family unit until their relationship ended, when Raven was about
20 months old. When their relationship deteriorated and they ultimately separated,
defendant changed her intentions, but she had participated in creating a family unit
which included plaintiff. For example, as the trial court found, Raven’s relationship
with Trisha, plaintiff’s child, was “a special and loving bond as sisters[.]”
The trial court’s findings of fact are to some extent contradictory. For example,
the court found that “[s]ubsequent to [Raven]’s birth, the Plaintiff was not held out
as [Raven]’s parent. . . .” But the trial court also made findings of fact of instances of
plaintiff being held out as a parent. Specifically, the trial court found that defendant
gave plaintiff a Mother’s Day card “addressed to ‘Leemo’ on [Raven’s] behalf”; that
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defendant had “assured Plaintiff after they separated that she would continue to see
[Raven] as she was her ‘mama too’ ”; that “Defendant sent an email to Carolina
Conceptions thanking them on behalf of Lee, Big Sister [Trisha] and Baby [Raven].
She states, ‘Lee, [Trisha] and I are so elated to have her as part of our extended
family,’ and they have ‘made us the happiest family on earth.’ ”; and that the parties
had discussed that the survivor would care for both children upon the death of either
party.
Plaintiff also argues that the trial court erred in failing to consider facts and
circumstances preceding Raven’s birth. We agree. Specifically, the trial court found
that “[a]t all times relevant to custody, however, that is, at all times after the birth of
the child, the Defendant demonstrated her desire to be the child’s sole parent.”
(Emphasis added). The trial court based its conclusion that plaintiff had no standing
upon its finding that defendant changed her intention to co-parent with plaintiff
immediately after Raven’s birth, despite her former intention to create a joint family,
as shown during the parties’ extensive efforts to conceive and preparation for Raven’s
birth. Even setting aside the fact that other findings tend to indicate that defendant
continued to have the intention to co-parent with plaintiff at least until the parties’
separation, the trial court’s findings state it did not consider the parties’ actions prior
to Raven’s birth because they were not “relevant” to this inquiry on intent. But
defendant’s actions prior to the child’s birth are relevant to determining her intention.
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Although the events prior to birth alone are not controlling, they must be
considered along with actions after the child’s birth. All of North Carolina’s prior
cases addressing similar same-sex partners who had a child and then separated have
discussed the parties’ actions in planning and preparing for their family even before
the child’s conception and birth. See, e.g., Estroff, 190 N.C. App. at 69, 660 S.E.2d at
78 (“[I]t is appropriate to consider the legal parent’s intentions regarding the
relationship between his or her child and the third party during the time that
relationship was being formed and perpetuated.”). See also Davis v. Swan, 206 N.C.
App. 521, 528, 697 S.E.2d 473, 478 (2010) (“Here, the trial court made numerous
findings of fact, which are unchallenged on appeal, that demonstrate Swan’s intent
jointly to create a family with [her former domestic partner] Davis and intentionally
to identify her as a parent of the minor child.”).
Although the specific facts of each case are unique, prior cases have addressed
the parties’ actions leading up to the inception of the custody dispute, including
actions before a child’s birth, as relevant to determining this intention. These cases
naturally involve same-sex couples, so each couple had to decide who would carry the
child and how the child would be conceived. For example, in Boseman, our Supreme
Court noted the parties’ actions prior to the child’s birth:
The record in the case sub judice indicates that
defendant intentionally and voluntarily created a family
unit in which plaintiff was intended to act -- and acted -- as
a parent. The parties jointly decided to bring a child into
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their relationship, worked together to conceive a child, chose
the child’s first name together, and gave the child a last
name that “is a hyphenated name composed of both parties’
last names.” The parties also publicly held themselves out
as the child’s parents at a baptismal ceremony and to their
respective families. The record also contains ample
evidence that defendant allowed plaintiff and the minor
child to develop a parental relationship. Defendant even
“agrees that [plaintiff] . . . is and has been a good parent.”
Boseman, 364 N.C. at 552, 704 S.E.2d at 504 (emphasis added).
It is true that in Boseman, the parties took additional actions to make the
parental relationship between the plaintiff and the child permanent, since the parties
jointly participated in an adoption proceeding so the defendant would become the
child’s legal parent. Id. at 540, 704 S.E.2d at 497. That adoption was vacated in
Boseman, but the underlying custody action remained. Id. at 553, 704 S.E.2d at 505.
But if the parties’ actions prior to the child’s birth in Boseman were irrelevant, the
Supreme Court would not have noted these actions. These facts are part of the
relevant inquiry, along with the parties’ actions after the child is born.
In all of these cases, whether months or years after the child’s birth, the parties
became estranged, and either during the time immediately preceding the
estrangement or at that time, the biological parent’s intentions as to the former
partner changed and she denied her partner access to the child. The birth parent
changed her intentions in every case, but her intention at that point is not controlling.
The issue is whether, before the end of the relationship, she had the intent to create
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that relationship with the partner and whether she overtly did so, leading both the
child and others to believe that the partner was in a parental role. Our Court has
noted that the trial court should focus on the parties’ actions and intentions prior to
their estrangement, and may include the time prior to the child’s birth:
[T]he court’s focus must be on whether the legal parent has
voluntarily chosen to create a family unit and to cede to the
third party a sufficiently significant amount of parental
responsibility and decision-making authority to create a
permanent parent-like relationship with his or her child.
The parent’s intentions regarding that relationship are
necessarily relevant to that inquiry. By looking at both the
legal parent’s conduct and his or her intentions, we ensure
that the situation is not one in which the third party has
assumed a parent-like status on his or her own without
that being the goal of the legal parent.
....
We agree with the New Jersey Supreme Court that
the focus must, however, be on the legal parent’s intent
during the formation and pendency of the parent-child
relationship between the third party and the child.
Intentions after the ending of the relationship between the
parties are not relevant because the right of the legal parent
does not extend to erasing a relationship between her
partner and her child which she voluntarily created and
actively fostered simply because after the party’s separation
she regretted having done so.
Estroff, 190 N.C. App. at 70-71, 660 S.E.2d at 78-79 (citations, quotation marks, and
brackets omitted) (emphasis added).
Estroff indicates that the actions and intentions during the relationship of the
parties, during the planning of the family, and before the estrangement carry more
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weight than those at the end of the relationship, since the court noted that
“[i]ntentions after the ending of the relationship between the parties are not relevant
because the right of the legal parent does not extend to erasing a relationship between
her partner and her child which she voluntarily created and actively fostered simply
because after the party’s separation she regretted having done so.” Id. at 70-71, 660
S.E.2d at 79 (citation, quotation marks, and brackets omitted). See also Davis, 206
N.C. App. at 526, 697 S.E.2d at 477 (“Also, the trial court must consider the intent of
the legal parent, in addition to her conduct.”).
Here, by finding that the parties’ actions and intentions prior to Raven’s birth
were not relevant, the trial court failed to consider all of the factors which show
“intent during the formation and pendency of the parent-child relationship between
the third party and the child.” Id. at 70, 660 S.E.2d at 79 (citation and quotation
marks omitted). Instead, the trial court focused more on the defendant’s change of
intention upon the ending of the relationship, which is “not relevant because the right
of the legal parent does not extend to erasing a relationship between her partner and
her child which she voluntarily created[.]” Id. at 70-71, 660 S.E.2d at 79 (citation,
quotation marks, and brackets omitted). To the contrary, the facts as to the parties’
planning of Raven’s birth and clearly stated intentions, particularly in relation to the
process through Carolina Conceptions and at the hospital, tend to show the intent to
form a family unit, with defendant as a co-parent. Had the parties separated
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immediately upon Raven’s birth, these actions prior to birth would not alone establish
standing for defendant’s custody claim, since defendant and Raven would never have
formed a relationship, but that is not this case. Living together as a family for over
a year would demonstrate a continuing intention, even though defendant’s intentions
later changed.
The trial court also focused on other facts with limited relevance to the proper
legal conclusion. For example, the trial court found that the parties did not take
“steps. . . to make the family unit permanent”:
52. The Plaintiff did not create a permanent parent-like
relationship with the minor child, only a “significant
loving, adult care taker” relationship, not that of a parent.
53. No steps were made by the parties to make the
family unit permanent. The parties were not married in
this or any other state.
Marriage was not an available option for these parties in North Carolina prior to their
relationship ending in October 2014.3 Other states recognized same-sex marriages
earlier, but marriage of the parties still would not change the legal relationship
between plaintiff and Raven. Heterosexual couples often marry after one party has
3 Nor would adoption have been an option. See Boseman, 364 N.C. at 546; 704 S.E.2d at 501
(finding adoption decree void and plaintiff [former same-sex partner of defendant] not legally
recognizable as the minor child’s parent where “[p]laintiff was not seeking an adoption available under
Chapter 48. In her petition for adoption, plaintiff explained to the adoption court that she sought an
adoption decree that would establish the legal relationship of parent and child with the minor child,
but not sever that same relationship between defendant and the minor child. As we have established,
such relief does not exist under Chapter 48.” (Citations omitted)).
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had a child from a previous relationship, but the legal marriage itself does not give
the step-parent any claim to parental rights in relation to the child. See, e.g., Moyer
v. Moyer, 122 N.C. App. 723, 724-25, 471 S.E.2d 676, 678 (1996) (“At common law,
the relationship between stepparent and stepchild does not of itself confer any rights
or impose any duties upon either party. In contrast, if a stepfather voluntarily takes
the child into his home or under his care in such a manner that he places himself in
loco parentis to the child, he assumes a parental obligation to support the child which
continues as long as the relationship lasts. . . . However, the fact that a stepfather is
in loco parentis to a minor child during marriage to the child’s mother does not create
a legal duty to continue support of the child after the marriage has been terminated
either by death or divorce.” (Citations omitted)); Duffey v. Duffey, 113 N.C. App. 382,
387, 438 S.E.2d 445, 448-49 (1994) (“If we are to impose the same obligations and
duties on a stepparent, then it is only fair to confer the same rights and privileges,
such as visitation and custody, to a stepparent. However, to do so would necessarily
interfere with a child’s relationship with his or her noncustodial, natural parent.
Clearly this is not what the legislature intended.”).
And although both same-sex and heterosexual marriages are intended to be
permanent, sometimes they end in divorce, and the divorce of the partners does not
change the legal relationship of the partners to their children. This Court has
rejected the argument that the legal ability to marry or adopt has “legal significance”:
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Likewise, we find immaterial Dwinnell’s arguments
that she and Mason could not marry, and Mason could not
adopt the child under North Carolina law. We cannot
improve on the Pennsylvania Supreme Court’s explanation
as to why “the nature of the relationship” has no legal
significance to the issues of custody and visitation: “The
ability to marry the biological parent and the ability to
adopt the subject child have never been and are not now
factors in determining whether the third party assumed a
parental status and discharged parental duties. What is
relevant, however, is the method by which the third party
gained authority to do so.”
Mason, 190 N.C. App. at 218-19, 660 S.E.2d at 64 (citation omitted) (emphasis
omitted) (emphasis added). Likewise, the trial court found that plaintiff was “not
listed as a parent on the child’s Birth Certificate,” but it would have been impossible
in North Carolina for her to have been listed on the birth certificate when Raven was
born in 2013, as same-sex marriage was not yet recognized. See, e.g., Mason, id. at
211-12, 660 S.E.2d at 60 (“Although Dwinnell’s name was the only name listed as a
parent on the child’s birth certificate, evidence was presented that the parties
mutually desired to include both Mason and Dwinnell on the birth certificate, but the
hospital refused to do so.”).
Here, defendant’s actions before Raven’s birth -- if we assume that the trial
court made its findings based upon clear, cogent, and convincing evidence -- indicate
her intent to create a parental relationship between Raven and plaintiff. The trial
court found that both parties signed a contract with Carolina Conceptions which
states “that any child resulting from the procedure will be their legitimate child in all
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aspects” and identifies the parties collectively as “Recipient Couple.” The trial court
also found that “[p]rior to the pregnancy, the Defendant intended that Plaintiff serve
as a parent to [Raven].” The court’s order contains numerous other findings noting
plaintiff’s bond with Raven and emails and other correspondence by defendant
identifying plaintiff as a mother to Raven and Trisha as Raven’s sister. Based upon
the uncontested findings and assuming that these findings were based upon clear,
cogent, and convincing evidence, the trial court erred in concluding that plaintiff did
not have standing to support her claim for custody. In addition, the trial court should
have considered the facts preceding Raven’s birth in making its conclusions and
should not have relied upon the facts that the parties were not married, pursued no
legal adoption, and did not list plaintiff as a parent on the birth certificate. We
therefore vacate the order and remand this matter to the trial court for further
proceedings consistent with this opinion.
III. Limitation of time for hearing
Although we have determined that we must vacate and remand the trial
court’s order, we will discuss plaintiff’s remaining issue as it may be relevant for the
trial court’s consideration of the issues on remand. Plaintiff argues that the trial
court abused its discretion in terminating plaintiff’s testimony and limiting plaintiff’s
evidentiary presentation to one hour. But plaintiff requested no additional time at
the hearing, so she has waived this argument on appeal. See, e.g., Hoover v. Hoover,
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__ N.C. App. __, __, 788 S.E.2d 615, 618 (“N.C. R. App. P. Rule 10(a)(1) (2014) provides
in relevant part that in order to preserve an issue for appellate review, a party must
have presented to the trial court a timely request, objection, or motion, stating the
specific grounds for the ruling the party desired the court to make and must have
obtained a ruling upon the party’s request, objection, or motion. As a general rule,
the failure to raise an alleged error in the trial court waives the right to raise it for
the first time on appeal.” (Citations, quotation marks, and brackets omitted)), disc.
review denied, __ N.C. __, 794 S.E.2d 519 (2016).
At the start of the hearing, both the trial judge and plaintiff’s attorney noted
that the court was setting aside two hours for a temporary custody hearing. No
objection was lodged in relation to the time constraint. Plaintiff argues on appeal
that the trial court ended up doing much more than determining temporary custody,
since the trial court dismissed the action, but the trial court could not address even
temporary custody without first determining whether plaintiff had standing to
pursue a custody claim. Under the local district court rules for a temporary custody
hearing, which defendant filed as a memorandum of additional authority, Rule 7.3
notes that “[t]emporary custody hearings shall be limited to two (2) hours. Each party
will have up to one (1) hour to present his or her case, including direct and cross-
examination, opening and closing arguments.” The rules also state that additional
time may be requested by parties “[w]ith written notice to the opposing party at least
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seven (7) days prior to the scheduled hearing date[.]” Plaintiff did not request
additional time under Rule 7.3. We find the trial court did not abuse its discretion
by limiting plaintiff’s presentation to one hour.
Conclusion
In conclusion, we must vacate the trial court’s order dismissing plaintiff’s
custody complaint for lack of standing. Because the trial court’s order does not
properly address or weigh evidence of events before Raven’s birth; relies at least in
part on matters such as the parties’ failure to marry; and does not indicate that the
proper standard of clear, cogent, and convincing evidence was used, we vacate the
trial court’s order and remand to the court for further proceedings consistent with
this opinion. Specifically, the trial court should enter a new order addressing the
jurisdictional issue containing findings of fact based upon clear, cogent and
convincing evidence. Depending upon that order, if the custody claims remain to be
determined, the trial court shall allow the parties to present evidence at another
hearing.
VACATED AND REMANDED.
Judges HUNTER, Jr. and DAVIS concur.
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