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Date: 09-03-2024
Case Style:
Oliver Harney v. Christina Harney
Case Number: 20CVD592
Judge: S. Katherine Burnette
Court: District Court, Vance County, North Carolina
Plaintiff's Attorney:
Defendant's Attorney:
Description:
Henderson, North Carolina family law lawyers represented the parties in a child custody dispute.
Mother lives in New York and she gave birth to Sam in New York in June 2019. Plaintiff ("Grandfather") lives in Vance County, North Carolina. When the complaint in this matter was filed, Sam's biological father was "unknown" to Grandfather[2] although Mother later identified the biological father during this custody case. Grandfather traveled to New York to be with Mother when Sam was born. Soon after Sam's birth, Grandfather had a "consultation with the New York child protective services agency," and Grandfather "was able to obtain temporary custody of [Sam]." On 26 June 2019, about a week after Sam's birth, Grandfather filed an "Order to Show Cause Pursuant to Section 651 of the Family Court Act with Temporary Relief and Petition for Custody" in Suffolk County, New York seeking custody of Sam. He alleged Mother's home was a health hazard due to water damage and mold and that Mother was a hoarder. At the time of Sam's birth, Mother's home was not habitable due to "mold issues that had not been remediated or addressed by" Mother and the home "smelled of mold and cat urine." Grandfather also alleged concerns regarding Mother's mental health.
After Grandfather filed his petition in New York on 26 June 2019, the Suffolk County Family Court entered an order granting emergency temporary custody of Sam to Grandfather.[3] On 28 June 2019, with the consent of both parties, the Suffolk County Family Court entered a "So-Ordered Stipulation"[4] ("Stipulation") which granted the parties "joint custody" of Sam, with Grandfather as "the physical residential custodian" and giving Mother "rights of supervised parental access through EAC or with a family member or other person approved by [Grandfather]" or as "otherwise agreed" by the parties in writing. The Stipulation noted that
Grandfather would pay for Mother's flight for a "scheduled visit" with Sam on 11-16 July as Grandfather "is currently residing in" North Carolina and Sam would reside with him. Mother agreed to "undergo psychiatric evaluation and follow through with any and all recommendations by medical professionals" and to make the results of the evaluation available to Grandfather. The Stipulation granted Grandfather "final decision making authority regarding all major decisions" as to Sam's care and education. The Stipulation also provided that both parties "were entitled to receive all medical records and to converse with any physician or professional" regarding Sam. Mother agreed to have three mold tests done of her home in New York by a "certified air quality specialist," to be done in three month increments and "all three (3) tests shall prove to be negative for any mold." The Stipulation notes that Grandfather was represented by counsel in New York and Mother was pro se, although she "was encouraged and strongly advised to seek independent representation but has refused[.]" After entry of the Stipulation, Grandfather and Sam traveled back to his home in North Carolina "on June 29, 2019 and [ ] remained there since that time[.]"
On 17 June 2020, Grandfather filed a "Complaint for Custody and Protective Order" against Mother in Vance County, North Carolina. His complaint included allegations regarding the New York custody action and an attached copy of the Stipulation. On 6 July 2020, Mother filed a "Petition for Modification of Order of Custody" in New York, alleging that she lived in New York at the same address as she lived at the time of Sam's birth, and Grandfather and Sam lived in North Carolina. She alleged there "has been a change of circumstances" since the prior order in that "Mold Air test passed and evaluations met. Ready for unification.[5] Requirements met. N.Y State jurisdiction, not North Carolina." She further alleged Grandfather "is trying to remove my custody rights and order I can not fight for them with an order. Parental alienation, malice, hersay (sic) & defamation of my
6
character." She also filed a "Petition to Enforce Custody or Visitation Order" in New York, making allegations regarding the entry of the Stipulation and the filing of the North Carolina custody action by Grandfather. She sought in part "to continue jurisdiction in New York" and "to protect my rights as mother and continue all cases in N.Y. Suffolk Family Court." On 22 July 2020, Mother also filed a Motion for "Dismissal Based on Lack of Jurisdiction" in Vance County.
On 2 October 2020, Mother filed an "Amended Answer and Motion to Dismiss" in Vance County. She alleged North Carolina did not have jurisdiction over custody of Sam and that New York "has Exclusive, Continuing Jurisdiction" regarding custody. She also admitted or denied the allegations of Grandfather's complaint for custody. As relevant to this appeal, Mother admitted Sam had been living in North Carolina with Grandfather since June 2019. She also admitted the allegation that Sam's father is "unknown."
On 23 October 2020, the Suffolk County Family Court in New York entered a "Final Order on Petition for Modification of Order of Custody made by Family Court." This Order indicates that the Honorable Heather P.S. James Esq, Referee in Suffolk County and Judge Adam Keith in Vance County conducted the hearing and both parties "appeared in North Carolina with counsel[.]" The New York Order declining to exercise jurisdiction stated:
[A]fter examination and inquiry into the facts and circumstances of the case, after hearing the arguments of the parties through their counsel both in the Family Court of the State of New York, County of Suffolk, before the undersigned and in the General Court of Justice, District Court Division, Vance County, NC [Docket# 20CVD592] (hereinafter, 'the North Carolina matter') before the Hon. Adam Keith, and for all of the reasons set forth upon the record this date,
NOW, therefore, it is hereby
ORDERED, that pursuant to DRL section 76-f, New York hereby declines exclusive continuing jurisdiction in favor of the more appropriate forum in North Carolina; and it is further,
ORDERED, that the parties are directed to appear in and cooperate with the further proceedings in the North Carolina matter.
On 3 June 2021, the trial court entered a temporary custody order addressing various issues including communication between the parties, family therapy, mental health assessments for both parties, and visitation for Mother. The trial court also noted that "[a]ccording to the parties, the natural father of the minor child" was an "anonymous sperm donor" and "all parties necessary to this action are properly before the court for hearing."
On 16 July 2021, the trial court entered an "Order Regarding Expert Appointment and Notice." This order appointed a psychiatrist to evaluate both parties and provide a report to the trial court for the 9 December 2021 hearing. In addition, by this point in the proceeding - after Grandfather had filed a motion seeking to compel Mother to identify the biological father based on a need for medical history information to assist in dealing with a health condition of the child - Mother identified the previously "anonymous" sperm donor as the putative father of the child. This order states that "[n]either party objected to providing the putative father with notice of the proceeding pursuant to N.C. Gen. Stat. ยง 50A-205(a). Via the parties, the putative father has request[ed] that his name be placed under seal in the Court file." This order required Grandfather to "properly notice the putative father of the child-custody proceeding[.]"
On 9 September 2021, Mr. Doe,[6] the putative father of Sam, filed an "Acceptance of Service and Waiver of Responsive Pleading." Mr. Doe averred that "he is the biological father of the minor child involved in this proceeding" and he acknowledged receipt of the Summons, Complaint, Amended Answer, and orders "in this action"; that he was making a general appearance in this matter; and that he waived "further responsive pleadings" and "all notice requirements."
A hearing was held on custody on 1 June 2021[7] and 21 April 2022, and on 15 June 2022, the trial court entered a Custody Order granting legal and physical custody of Sam to Grandfather, with Mother to have limited visitation after complying with various requirements for Mother to consult with Sam's medical providers to learn about his diagnosis of autism and "to understand [his] diagnosis and treatment options." Mother filed timely notice of appeal of this Order and included the orders entered on 23 October 2020 and 3 June 2021.[8].
Outcome: Affirmed.
..
Harney v. Harney, COA23-364 (N.C. App. Sep 03, 2024)0
Plaintiff's Experts:
Defendant's Experts:
Comments: