Defending Child Custody and Visitation Order on Appeal

The North Carolina Court of Appeals published its opinion earlier this year on a case Jim Siemens argued before the Court in Raleigh in October. Jim was successful in defending the visitation arrangement in a child custody modification order entered in Buncombe County.

The Defendant-Appellant argued on appeal that the trial court’s order awarded her unreasonable visitation without finding her unfit, and erred in denying her access to the child’s records. The Court of Appeals affirmed the order as it relates to the Defendant’s visitation and reversed the provisions denying her access to the child’s school, medical and counseling records.

The appeal focused in part on the interpretation and application of N.C. Gen. Stat. 50-13.5(i), which provides that “[i]n any case in which an award of child custody is made in a district court, the trial judge, prior to denying a parent the right of reasonable visitation, shall make a written finding of fact that the parent being denied visitation rights is an unfit person to visit the child or that such visitation rights are not in the best interest of the child.”

Images would fit into the blog like this.

The Court of Appeals concluded that the parameters placed on the Defendant’s visitation in this case are not the type of “severe restrictions” that North Carolina’s case law has determined effectively deny the right of reasonable visitation. Thus, the opinion explains, N.C. Gen. Stat. 50-13.5(i)’s mandate is not applicable here, and the trial court did not err by entering the visitation order without specifically finding that the Defendant was unfit to exercise reasonable visitation.

The Court further refuted the Defendant’s argument that the terms of her supervised visitation were not supported by the evidence or the trial court’s findings, ultimately concluding that the findings “amply support the trial court’s conclusion that it is in the best interest of the child that Defendant be supervised for extended visits.”

Judge Allegra Collins wrote the opinion for the case, and Judge Hampson and Chief Judge McGee concurred.

The full published opinion on Paynich v. Vestal (COA 19-185) can be found on the N.C. Courts Appellate Court Opinions website.

The North Carolina Bar Association’s NCBarBlog published another take on Paynich v. Vestal, which you can find here: China’s One Child Policy compared to Paynich v. Vestal.

Jim Siemens

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This article is intended for information purposes only and is not to be considered or substituted as legal advice. This article is based on North Carolina laws in effect at the time of posting.