TORTIOUS INTERFERENCE WITH PARENTAL RIGHTS

Each year a substantial number of children are abducted by non-custodial parents, members of their family or others as a result of bitter custody proceedings or fears of sexual or physical abuse while the child is with the other parent. Multiple states, including North Carolina, now recognize a civil cause of action for abduction of a child. This cause of action or tort states that, a person who, with knowledge that the parent of a child does not consent, abducts or otherwise compels or induces a minor child to leave a parent legally entitled to its custody or not to return to the parent after it has left him or her, is subject to liability to the parent. There are cases extending the tort to interference with visitation rights.

The elements of the tort of Interference with Parental Rights are as follows.

1. A parent has a legally protected custodial interest in his or her minor child; and

2. The defendant abducts or removes the minor child from the parent’s custody, or, if the child left home voluntarily induces the child not to return without the parent’s consent and against his or her will; and

3. The plaintiff suffers damages for loss of the society of the child, for his or her emotional distress resulting from the abduction or enticement and reasonable expenses incurred in regaining custody of the child or treating any physical harm resulting to the child as a result of the abduction

This cause of action for abduction of a child was first recognized in North Carolina in the case of La Grenade v. Gordon, 46 N.C. App. 329, 264 S.E.2d 757, 758-59, a 1983 case in which the mother stated a cause of action against the father and paternal grandparents for abduction where she had the superior right to custody of the child. This cause of action has been recognized in many other states such as New York, Texas and Wisconsin. In Wisconsin the case was filed in federal court which held that where the mother and boyfriend abducted a two year old child from father in violation of Maryland custody order and conspired with grandparents to keep the child from the father, compensatory damages of $70,000 and punitive damages of $250,000 were awarded. Lloyd v. Loeffler, 694 F.2d 489, 495-96 (7th Cir. 1982)

Contributor: Carole S. Gailor - Carole S. Gailor, a Raleigh Family Law Attorney is a leading North Carolina Divorce Lawyer. She is a Board Certified Family Law Specialist and a Fellow of the American Academy of Matrimonial Lawyers. Ms. Gailor is a founding partner with North Carolina Family Law Firm of Gailor, Wallis & Hunt, PLLC.

For more information contact the Raleigh, North Carolina Family Law Firm of Gailor, Wallis & Hunt at 1101 Haynes Street, Suite 201, Raleigh, NC 27604, Tel: 919-832-8488 or go to www.gailorwallishunt.com.

Disclaimer: The information contained in this article is intended as a general guide and is not to be used as legal advice by Gailor, Wallis & Hunt, PLLC. Whether or not you may be entitled to take action in regard to the information addressed in this article can only be determined after a thorough review of the facts and circumstances of your case by a qualified family law attorney.

In North Carolina, the trial court has the authority to make an order on all issues o pertaining to custody and visitation of children as well as child support. These initial orders are always modifiable by the court. In regard to custody, the court will always ask, “What is in the best interests of the child?” In considering what is in the “best interests” of the child, the court may review a number of different factors. Essentially the court may review anything and everything that affects the welfare of the child. For example, these factors may include (but are certainly not limited to) the morality of the parents and child, wishes of the child, domestic violence in the home, and nurture of a child’s spirituality. Furthermore, when modifying a custody determination, the court must decide if there has been a “substantial change of circumstances” which affects the welfare of the child. The Court may consider all changes, regardless if the change affects the child negatively or positively.

Of the many factors that affect the welfare of the child, one of the more interesting areas that the Court may consider is the “lifestyle of the parent.” The term lifestyle covers a wide range of topics, from adultery to substance abuse to career change to military service.

One of the topics included within the pertinent case law dealing with a parent’s lifestyle is homosexuality. The flagship case on this topic is Pulliam v. Smith, 348 N.C. 616, 501 S.E.2d 898 (1998), which is a North Carolina Supreme Court decision from 1998. In Pulliam, the facts showed that the mother and father separated in 1990 when the mother went to live with her boyfriend in Wichita, Kansas. In 1991, pursuant to a consent order, the father was granted physical custody of the two minor children. At the time of the consent order, the two boys were six and three years old, respectively. In 1993, the mother married her boyfriend, Mr. Pulliam, in Kansas. In 1994, Tim Tipton, the father’s boyfriend, moved into the home with the father and the two minor children.

In 1995, based upon the father’s homosexual relationship, the mother filed a motion to modify custody. The trial court granted the motion and the father appealed. The North Carolina Court of Appeals reversed the trial court on the grounds that a substantial change in circumstances had not occurred based on the evidence in the record. The mother appealed to the North Carolina Supreme Court.

The North Carolina Supreme Court reversed the Court of Appeals and ordered that the trial court’s ruling be reinstated. The Supreme Court found that the evidence showed that the father and his boyfriend would kiss and hold hands in front of the children, and shared the same bedroom while the children were in the house. The father and Tim Tipton also admitted to engaging in oral sex in the bedroom, but only with the door closed and never in front of the children. Furthermore, the Supreme Court cited the trial court’s finding that, “The activity of the Defendant will likely create emotional difficulties for the two minor children….That the active homosexuality of the Defendant and his involvement with Tim Tipton by bringing Tim Tipton in to the home of the two minor children is detrimental to the best interest and welfare of the two minor children.” Id. at 623, 902.

Justice John Webb wrote the dissent and claimed that the true reason behind the majority opinion was the fact that the father was gay. The majority responds to the dissent by stating, “We conclude that activities such as the regular commission of sexual acts in the home by unmarried people, failing and refusing to counsel the children against such conduct while acknowledging this conduct to them, allowing the children to see unmarried persons known by the children to be sexual partners in bed together, keeping admittedly improper sexual material in the home…support the trial court’s findings of ‘improper influences’ which are ‘detrimental to the best interest and welfare of the two minor children.’” Id. at 627, 904.

The Court went further to say, “Nor does this Court hold that the mere homosexual status of a parent is sufficient, taken alone, to support denying such parent custody of his or her child or children.”

Despite the Court’s assertion, it is clear from the ruling that leading an openly homosexual lifestyle can be fodder for the court in determining custody between two parents. Those in the gay and lesbian community did not see Pulliam as a step forward in the rights of homosexuals, and many commentators believe that the Court of Appeals wrote the correct opinion. Many in the legal community feel that if the same set of facts had been applied to a heterosexual couple, then the outcome would have been dramatically different.

If you find yourself questioning your spouse’s lifestyle choices, or find that your own lifestyle is being questioned, it may be necessary to meet with a family law attorney in your area to understand the implications it may have on the custody of your child. The family law offices of Gailor, Wallis & Hunt, PLLC in Raleigh, North Carolina are openly accepting of all clients, regardless of their sexual orientation.

Contributor: Rebecca F. Redwine. Rebecca Redwine is a Raleigh Family Law Attorney with the North Carolina Family Law Firm of Gailor, Wallis & Hunt, PLLC.

For more information contact the Raleigh, North Carolina Family Law Firm of Gailor, Wallis & Hunt, PLLC at 1101 Haynes Street, Suite 201, Raleigh, NC 27604, Tel: 919-832-8488, or go to www.gailorwallishunt.com

Disclaimer: The information contained in this article is intended as a general guide and is not to be used as legal advice by Gailor, Wallis & Hunt, PLLC. Whether or not you may be entitled to take action in regard to the information addressed in this article can only be determined after a thorough review of the facts and circumstances of your case.

Initial Child Custody Determinations in North Carolina by Raleigh native, Jaime Humphries Davis Gailor, Wallis & Hunt, PLLC. (more…)

Raleigh divorce attorney Jaime H. Davis educates on the issue of changing the terms of out-of-state custody orders when divorced parents relocate to North Carolina. Jaime is a Board Certified Family Law Specialist and a member of the Raleigh divorce law firm of Gailor, Wallis & Hunt, PLLC.

After the divorce has been entered and all of the issues related to child custody and visitation; child support; alimony and spousal support; and property distribution have been resolved in another state, one or both of the parties may relocate with their children to North Carolina. When a parent moves to North Carolina, what happens to his or her custody order which has been entered in another state? North Carolina may enforce the terms of a custody order from another state if the state where the order was entered exercised jurisdiction in conformity with the Uniform Child Custody Jurisdiction and Enforcement Act, or the out-of-state child custody determination was made under factual circumstances that would meet the jurisdictional standards of the UCCJEA. N.C. Gen. Stat. Chapter 50A (2008).

In order for North Carolina to be able to enforce the terms of a custody order issued in another state, the custody order must be registered in North Carolina. Registration of an out-of-state order is a relatively simple legal process that involves filing the following information with the court of the county in which you are living: a verified letter or other document requesting registration, two copies of the custody order sought to be registered (one copy must be certified), a statement under oath that the order has not been modified, and the names and addresses of the person seeking to register the order and any parent or person acting as a parent who has been awarded custody or visitation in the order sought to registered.

The opposing party has twenty (20) days to contest registration of the custody order; however, the grounds for contesting registration of the order are quite limited. The grounds are: (1) the state issuing the original custody order did not have jurisdiction to enter the order under the UCCJEA; (2) the custody order in question has been vacated, stayed, or modified; or (3) that he was entitled to notice, and that proper notice was not given in the original proceeding that resulted in the custody order sought to be registered. If registration of the order is uncontested, or if the person contesting the registration fails to prove the existence of one of the three grounds listed above, the court will confirm the registered out-of-state order and it will be recognized and enforced in North Carolina.

While North Carolina may have jurisdiction to register and enforce a custody order issued in another state, whether North Carolina courts can modify or change the terms of that custody order is a different question. North Carolina may not modify the terms of another state’s custody order unless North Carolina would have jurisdiction to make an initial child custody determination as the home state of the children or as a “significant connection state,” and one of the following conditions is met ( See N.C. Gen. Stat. §50A-201 (2008).

First, the state issuing the order determines that it no longer has exclusive continuing jurisdiction or that North Carolina would be a more appropriate forum, or second, that either North Carolina or the other state determines that the child, the child’s parents, and any other person acting as a parent no longer reside in the other state. For example, Mom and Dad were divorced in South Carolina, and a South Carolina court entered a custody order.

Mom moves to North Carolina with the child, but Dad remains in South Carolina. South Carolina will retain exclusive continuing jurisdiction until such time as South Carolina determines that it no longer has jurisdiction, that North Carolina would be a more appropriate forum, or Dad moves to another state. Absent the occurrence of one of the foregoing factors, Mom will not be able to modify the terms of the South Carolina custody order in North Carolina.

For more information on initial custody jurisdiction, see North Carolina Family Law News article entitled “Learning About Initial Child Custody Determinations in North Carolina” at www.northcarolinafamilylawnews.com.

Contributor: Jaime H. Davis - Jaime Davis. a Raleigh Family Law Attorney is a North Carolina Board Certified Family Law Specialist with the Raleigh, North Carolina Divorce Law Firm of Gailor, Wallis & Hunt, PLLC.

For more information contact: Raleigh, North Carolina Family Law Firm, Gailor, Wallis & Hunt at 1101 Haynes Street, Suite 201, Raleigh, NC 27604. Tel: 919-832-8488, www.gailorwallishunt.com.

Disclaimer: The information contained in this article is intended as a general guide and is not to be used as legal advice by Gailor, Wallis & Hunt, PLLC. Whether or not you may be entitled to take action in regard to the information addressed in this article can only be determined after a thorough review of the facts and circumstances of your case. You may contact North Carolina Family Lawyers, Gailor, Wallis & Hunt, PLLC, a full service divorce law firm, at 919-832-8488 or 910-509-7223

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