• Chapter 35A Guardianship Trumps Chapter 50 Custody

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    G.S. Chapter 35A authorizes the clerk of court to appoint a general guardian or guardian of the person for a child who has no natural guardian. A biological or adoptive parent is a natural guardian of a child, so these guardianships are an option only for children whose parents are both deceased or parental rights have been terminated (either both parents’ rights have been terminated, or one parent is deceased and the other parent’s rights have been terminated). See G.S. 35A-1224(a). However, orphaned children also are often the subject of Chapter 50 custody actions. What happens if a child is the subject of both proceedings? Can both move forward or does one preclude or take priority over the other? In Corbett v. Lynch, (Dec. 20, 2016), the North Carolina Court of Appeals held that the appointment of a general guardian or guardian of the person renders pending issues of Chapter 50 custody moot. In supporting its holding, the court indicates that a Chapter 35A guardianship creates a relationship between the child and the guardian that is more comprehensive than a relationship between a child and a custodian designated pursuant to Chapter 50.

    Corbett v. Lynch

    The biological mother of the two minor children involved in this case died in 2006. Their father later married Ms. Corbett, referred to by the court of appeals as the “stepmother.” Tragically, father was killed in 2015. Father’s will designated the children’s aunt, Ms. Lynch, and her husband as testamentary guardians of the two children, but stepmother filed a petition for guardianship of the children pursuant to Chapter 35A. In addition, the day after filing the guardianship petition, stepmother filed a Chapter 50 custody action and obtained an ex parte custody order granting her temporary custody of the children. Aunt thereafter filed an application for guardianship as well as an Answer and counterclaim for custody in the Chapter 50 proceeding.

    The clerk of superior court granted general guardianship to Ms. Lynch and her husband. Following the entry of the guardianship order, the district court dismissed stepmother’s custody case. Stepmother appealed the dismissal of the custody case, arguing that the district court erred in determining it did not have jurisdiction to proceed after the clerk entered the guardianship order.

    Chapter 35A Guardianship

    GS 35A-1221 allows “any person” to file an application with the clerk of superior court requesting the appointment of a guardian of the person or a general guardian for any minor who does not have a natural guardian. The clerk conducts a hearing to decide whether appointment of a guardian is required and if so, considers the child’s best interest to determine who the guardian or guardians should be. Once guardianship is ordered, the clerk retains jurisdiction to enforce compliance with all guardianship provisions, to resolve disputes between guardians, and to remove and replace guardians if necessary. G.S. 35A-1203. In addition, at any time after a guardianship petition is filed, the clerk has authority to enter a temporary, ex parte order when “an emergency exists which threatens the physical well-being of the ward or constitutes a risk of substantial injury to the ward’s estate.” GS 35A-1207.

    In Corbett, the court of appeals affirmed the trial court’s dismissal of stepmother’s custody case, holding that “the appointment of a general guardian by the clerk of superior court in the Chapter 35A guardianship proceeding rendered Stepmother’s Chapter 50 custody action moot” because an award of general guardianship “necessarily includes physical custody of the minor child.” See GS 35A-1241(a)(1)(a general guardian or guardian of the person is entitled to custody of the child).

    Further, the court implies without specifically stating that a Chapter 35A general guardian or guardian of the person of a minor child takes on the legal role of a child’s parent who has a “constitutionally-protected right to exclusive custody, care and control of [his or her] children.” These parental rights include but are not limited to the right to physical custody of the child.

    The court of appeals quoted the Supreme Court of Rhode Island to explain the relationship between guardianship and custody:

    “Permanent custody, so called, with its attendant responsibilities, is an incident of guardianship and parents are the natural guardians of their children… Where, as here, a child has been      orphaned, the appointment of a guardian supersedes that of a custodian since the latter is contained within the former.”

    Petition of Loudin, 219 A.2d 915, 917-18 (1966).

    What is the effect of a guardianship on an existing Chapter 50 custody order?

    The court in Corbett held that there was no reason to go forward with the pending custody case because the issue of who should have physical custody of the child had been resolved by the guardianship order making the pending custody case “moot.” However, the court also held that a general guardianship or guardianship of the person supersedes any existing permanent custody order. The court stated:

    “our [guardianship] statutes provide for an override of a Chapter 50 custody determination by the appointment of a general guardian or guardian of the person: Chapter 35A allows for an eligible party to obtain guardianship of a minor child with no living parents even if the child’s custody has already been resolved by the district court in a Chapter 50 proceeding.” (emphasis in original)

    As support for this conclusion, the court cited G.S. 35A-1221(4) which requires that an applicant for guardianship “include a copy of any … custody order” for the clerk’s consideration in making a decision about guardianship. The court reasoned that this provision makes it clear that the legislature intended for guardianship orders to replace any existing custody order.

    Does the entry of a guardianship preclude any future custody proceeding pursuant to Chapter 50?

    The answer appears to be yes. As previously stated, Chapter 35A provides that once a guardianship is entered, the clerk retains jurisdiction to enforce or modify a guardianship and to resolve all disputes between guardians. In McKoy v. McKoy, 202 N.C. App. 509 (2010), the court of appeals held that the parents of a disabled adult child who had been appointed general guardians of the child could not proceed with a GS 50 custody proceeding to resolve their dispute over the allocation of physical custody of the child between the two of them. According to the court in McKoy, the clerk retained exclusive jurisdiction to “determine disputes between guardians.” In an even more broad statement, the court in Mckoy held that, at least in the case of a disabled adult child, the district court has no jurisdiction to determine custody of the child once the clerk has entered a guardianship order.

     

     

     

    Cheryl Howell is a Professor of Public Law and Government at the School of Government specializing in family law.

    5 thoughts on “Chapter 35A Guardianship Trumps Chapter 50 Custody”

    • Paul W. Freeman Jr. says:

      what is the effect of the appointment of a 7B-600 guardian re subsequent custody actions. Since 7B proceedings have the effect of stopping Chapter 50 custody actions (if not combined), it seems that as long as juvenile jurisdiction continues, then any custody attempts would have to be made as Motions for Review in the juvenile action and that the Guardianship would be subject to 7B-600. Is that correct?

      • mm Sara DePasquale says:

        The holding in Corbett is specific to a Chapter 35A guardianship proceeding before the clerk of superior court, which differs from a guardianship order entered by the district court pursuant to GS 7B-600 during an abuse, neglect, or dependency action. When the district court has jurisdiction in both the GS Chapter 7B action and the Chapter 50 custody action, GS 7B-200(c) and (d) apply. The Chapter 50 custody action is automatically stayed unless the judge hearing the juvenile (7B) action consolidates the two proceedings or dissolves the stay of the Ch. 50 action and stays the 7B action. To modify a dispositional order in the 7B action, a motion in that action should be made. Who can be a party (including intervene) in that action is limited by GS 7B-401.1. Additionally, terminating a permanent plan of guardianship ordered under 7B-600 is based upon criteria found at 7B-600(b).

    • Molly Anthony says:

      McKoy v. McKoy seemed to hold that once a Chapter 50 custody order has been entered regarding the custody of an incompetent minor who then becomes an adult, that the clerk would not have subject matter jurisdiction to enter a guardianship order. Does Corbett override McKoy in that respect?

      • Matt Kraus says:

        McKoy v. McKoy was not regarding an incompetent minor. In Mckoy the parties were the parents of an adult who was adjudicated incompetent in or around 1999. The parties were appointed co-gaurdians of the person pursuant to ch. 35A. Subsequently, the parties divorced about 4 or so years later. As part of the divorce proceeding, one of the parties brought a claim for custody of their disabled adult child under Ch. 50. The court in Mckoy found that the district court and the clerk have concurrent jurisdiction over the custody of disabled adults. The court then held that once a court with concurrent jurisdiction took up jurisdiction over the matter, the other court lacked subject matter jurisdiction. In McKoy, the court stated that once the clerk adjudicated the adult child incompetent, all issues or disputes related to the guardianship were issues for the clerk to decide. Unlike McKoy, the court in Corbett went a step further. What the court did was find that once the clerk appoints a guardian for a minor under 35A, any district court matter becomes moot. The court found that 35A minor guardianships were essentially superior to district court custody actions. In Corbett, the court relied on 35A-1221(4) which states that an application to be a minor’s guardianship shall set forth to the extent known a statement of fact regarding any custody order that may exist and a copy of any custody order, if available. Because of this language, the clerk has superior jurisdiction over the district court, in “true orphan” situations. The final paragraph in Corbett instructs, however, that no matter whether a 35A minor guardianship exists or ch. 50 custody action exists, the district court can enter emergency custody orders. Apparently, emergency custody jurisdiction trumps everything else. Anyways, to answer your question, Corbett does not override McKoy because McKoy was a Ch. 35A adult guardianship and Corbett relates to Ch. 35A minor’s guardianship.

    • Matt Kraus says:

      Cheryl,

      I am reading your article on this matter again. In your section above under Ch. 35A guardianship, are you suggesting that G.S. 35A-1207, which is the motion in the cause statute, grants the clerk the authority to enter emergency orders prior to the hearing on the appointment of a guardian for a minor? Your sentence above states anytime after a petition [application] is filed the clerk can enter an emergency order, if appropriate. I am aware of the footnote in the last paragraph of the Corbett case. I don’t think that footnote, or the statute itself, suggests that clerks can enter these orders prior to a guardianship already being in place. If this were the case, why would it be in the motion in the cause section of G.S. 35A? Are you suggesting that because a minor is inherently a ward that G.S. 35A-1207(d) is different in the context of a pending application to be minor’s guardians vs. a pending incompetency and guardianship petition/application? This is the only way I can see G.S. 35A-1207(d) being applied differently for minor’s guardianships. As you know, G.S. 35A-1207 applies to adult and minor’s guardianships. We have always taken the position in the context of an adult guardianship that G.S. 35A-1207(d) applies after a guardianship is in place and a motion in the cause is filed. For adults prior to being adjudicated incompetent, the clerk can only enter “emergency” orders in the context of an interim guardianship. The issue is that in the footnote in Corbett, the COA essentially suggested that G.S. 35A-1207(d) is comparable to G.S. 50-13.5(d(2)-(3). I’m aware of no case that explicitly says the clerk can enter emergency orders in adult or minor guardianships prior to a guardianship being in effect. Simply put, I don’t see how 35A-1207 is comparable to G.S. 50-13.5(d(2)-(3). I would imagine this is why the last paragraph of Corbett is in the opinion. It isn’t really clear that the clerk can enter these orders in minor’s guardianship files prior to a guardianship already being in place. It would seem that if our legislature intended that, the clerk’s authority to do such wouldn’t be in the motion in the cause section of G.S. 35A. I am open to any thoughts or input on this. If there’s a case out there that contradicts this position I would love to see it.

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