Price v. Howard, 312A96

• Citation: 346 N.C. 68, 484 S.E.2d 528
• Case Date: May 09, 1997
• Court: United States State Supreme Court of North Carolina

Page 528

484 S.E.2d 528 346 N.C. 68, 65 USLW 2799 Stacy L. PRICE
v.
Robin HOWARD. No. 312A96. Supreme Court of North Carolina. May 9, 1997.

Vosburg and Fullenwider by Ann Marie Vosburg, Hillsborough, for plaintiff-appellant.

Mildred T. Hardy, Graham, for defendant-appellee.

ORR, Justice.

The custody issue in this case arises out of the relationship between plaintiff and defendant, who lived together in Durham, North Carolina, from 1986 until 1989. On 10 June 1986, defendant Robin Howard gave birth to a daughter. The child's name on the birth [346 N.C. 71] certificate was listed as Dominique Price, but the father's name on the birth certificate was left blank. However, from the time of the child's birth, defendant represented that plaintiff was the child's natural father. As a result, it was the child's belief that plaintiff was in fact her natural father.

Plaintiff and defendant separated in 1989, with the child remaining in the primary physical custody of plaintiff, but also spending time with defendant mother. Defendant stayed in the Durham area until the summer of 1991, when she moved to Eden, North Carolina. The child remained with plaintiff and attended school in Durham during the 1991-1992 school year. During the summer of 1992, defendant attempted to have the child's school records transferred to the Rockingham County school system.

Upon learning of defendant's attempt to have the child's school records transferred, plaintiff filed an action seeking custody of the child. In her answer, defendant denied that plaintiff was the natural father of the child. The court subsequently ordered a blood test, the results of which excluded plaintiff as the

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natural father of the child. In a 4 September 1992 order, the court found that it was in the child's best interests that she remain in the custody of plaintiff, and the court awarded plaintiff temporary custody of the child, subject to visitation by defendant. On 3 June 1993, plaintiff was married to Vanessa Price, and the child resided with them in Durham.

In its final order, dated 28 March 1995, the court concluded that both plaintiff and defendant were fit and proper persons to exercise the exclusive care and custody of the child. The court also concluded that it was in the child's best interests that she be in the primary physical custody of plaintiff. However, the court concluded that the recent ruling by this Court in Petersen v. Rogers, 337 N.C. 397, 445 S.E.2d 901 (1994), rev'g, 111 N.C.App. 712, 433 S.E.2d 770 (1993), did not allow the court to make that award. Therefore, the court ordered that defendant be awarded the exclusive companionship, care, custody, and control of the child. The court also ordered that the child receive therapy and that plaintiff and defendant share equally all uninsured costs for the therapy.

Upon review by the Court of Appeals, the trial court's order that plaintiff share in therapy costs was reversed on the ground that support for minor children is a parental obligation. Price v. Howard, 122 N.C.App. 674, 471 S.E.2d 673 (1996) (citing Boyd v. Boyd, 81 N.C.App. 71, 77-78, 343 S.E.2d 581, 585-86 (1986)). The Court of Appeals' [346 N.C. 72] majority affirmed the custody award, relying on the holding of Petersen v. Rogers. Judge Greene dissented, id. at 677, 471 S.E.2d at 675, arguing that Petersen does not govern the custody determination in this case. Plaintiff appealed pursuant to N.C.G.S. § 7A-30(2), based on Judge Greene's dissent. For the reasons stated below, we reverse the majority decision of the Court of Appeals.

The General Assembly has prescribed the standard to be applied in a custody proceeding in North Carolina in N.C.G.S. § 50-13.2, which provides that "[a]n order for custody of a minor child entered pursuant to this section shall award the custody of such child to such person, agency, organization or institution as will best promote the interest and welfare of the child." N.C.G.S. § 50-13.2(a) (1996). Therefore, in a custody dispute between two natural parents (we intend this phrase to include both biological and adoptive parents) or between two parties who are not natural parents, this "best interest of the child" test must be applied. The case now before us, however, is between a natural parent and a third party who is not a natural parent. In Petersen, this Court held that natural parents have a constitutionally protected interest in the companionship, custody, care, and control of their children. We stated that this interest must prevail in a custody dispute with a nonparent, absent a showing of unfitness or neglect. We are now called upon to decide whether other circumstances can require that interest to yield to the "best interest of the child" test prescribed by N.C.G.S. § 50-13.2(a). As will be discussed more fully, this decision requires a due-process analysis in which the parent's well-established paramount interest in the custody and care of the child is balanced against the state's well-established interest in protecting the welfare of children.

In the case sub judice, the trial court found that it was in the best interests of the child for custody to remain with plaintiff. However, relying on this Court's decision in Petersen v. Rogers, the trial judge felt compelled to award custody to defendant. Petersen involved a custody dispute between a child's natural parents and a couple who had unlawfully adopted the child. Although this Court voided the adoption in In re Adoption of P.E.P., 329 N.C. 692, 407 S.E.2d 505 (1991), the couple that had unlawfully adopted the child filed an action seeking custody of the child. After inquiring into the religious practices and beliefs of the plaintiffs, the trial court applied the "best interest of the child" test and awarded custody to defendants, the child's natural parents. The Court of Appeals did not address the question of whether the "best interest of the child" test was correctly [346 N.C. 73] applied or whether the natural parents' due process interest was adequately protected. Instead, the Court of Appeals held that the "plaintiffs' right to freedom of religion, as guaranteed by the federal and state constitutions, was violated by the trial court's extensive inquiry into

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plaintiffs' religion," Petersen, 337 N.C. at 399-400, 445 S.E.2d at 902, and the court remanded the case " 'for proceedings free from unwarranted religious inquisition into the beliefs of the parties' ", id. (quoting Petersen, 111 N.C.App. at 725, 433 S.E.2d at 778).

Defendants appealed to this Court, contending that the case involved a substantial question arising under the state and federal Constitutions. This Court also granted defendants' petition for discretionary review. We held that the trial court's inquiry into the plaintiffs' religious beliefs, if error, was harmless because, "[b]ased on the record, defendants' paramount right to custody of their minor child had to prevail." Id. at 404, 445 S.E.2d at 905. The plaintiffs argued to this Court that "the welfare of the child is paramount to all common law preferential rights of the parents." Id. at 403, 445 S.E.2d at 905. This Court rejected that argument by recognizing that the parents' interest in the companionship, custody, care, and control of the child is protected by the United States Constitution. Relying in part on Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972), we recognized the general principle that because of the strength and importance of the parents' constitutionally protected interests, those interests must prevail against a third party unless the court finds that the parents are unfit or have neglected the welfare of their children. See Petersen, 337 N.C. at 403-04, 445 S.E.2d at 905.

It was unnecessary in Petersen to articulate anything more than general constitutional principles. In Petersen, the plaintiffs unlawfully adopted the defendants' natural child. This Court noted the trial court's findings of fact that the child "is not eligible for adoption; the rights of his parents have not been terminated; ... his parents have not consented to any such adoption"; and the parents "are fit and appropriate persons to have custody of their son." Id. at 404, 445 S.E.2d at 905. This Court concluded:

There was no finding that defendants had neglected their child's welfare in any way. Based on the record, defendants' paramount right to custody of their minor child had to prevail; and the trial court could not award custody to anyone other than defendants. Since as a matter of law the trial court could not award custody[346 N.C. 74] to plaintiffs, inquiry into their fitness for purposes of custody was irrelevant.

Id. The Court did not discuss whether a "best interest of the child" test violated the Due Process Clause. However, in the case now before us, such a discussion is necessary.

"The Fourteenth Amendment provides that no State shall deprive any person of life, liberty, or property without due process of law." Lehr v. Robertson, 463 U.S. 248, 256, 103 S.Ct. 2985, 2990, 77 L.Ed.2d 614, 623 (1983). The interest implicated in the case before us and in Petersen is a natural parent's liberty interest in the companionship, custody, care, and control of his or her child. The United States Supreme Court has recognized that this interest is protected by the Constitution. In Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 554, 54 L.Ed.2d 511, 519 (1978), the Court stated: "We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected." In Lassiter v. Department of Social Servs., 452 U.S. 18, 27, 101 S.Ct. 2153, 2159-60, 68 L.Ed.2d 640, 649 (1981), the Court stated:

This Court's decisions have by now made plain beyond the need for multiple citation that a parent's desire for and right to "the companionship, care, custody, and management of his or her children" is an important interest that ...