Episode 59 – Terminal Trials: Custody Concerns

  1. Child Custody
  2. Episode 59 – Terminal Trials: Custody Concerns
Doctor holding a patient’s hand in hospital room. | New Direction Family Law

Ex-It Strategy
Podcast Episode 59
Terminal Trials: Custody Concerns

Listen Now

Apple | Spotify | YouTube


 Sarah Hink and Jen Bordeaux

Sarah: Hello. Thank you for joining us today. My name is Sarah Hink. I’m one of the experienced attorneys at New Direction Family Law. My partner at New Direction, Elizabeth Stephenson, is usually with us, but she is busy preparing for an emergency custody hearing, and I think a DVPO. She has a lot going on right now, so we excused her from the podcast recording today, but in her, well, not in her place, but as always—

Jen: I could never never fill those shoes.

Sarah: No. And oh my God, her shoes are gorgeous. Elizabeth always wins Best Dressed at the law firm. 

Jen: For sure. For sure. 

Sarah: Elizabeth Bordeaux. (Laughing) Now you’re adopted by her. I’m sure that would be amazing. 

Jen: Yes, I do call her my work mom. But I am Jen Bordeaux, not one of the experienced attorneys, but all things marketing for the firm. And I’m always happy to sub in as co host whenever you guys aren’t available so that we can continue to bring quality, funny hopefully, and informative content to our listeners here. So what are we talking about today, experienced attorney? 

Sarah: Well, okay, so it’s a little legally, so just bear with me. But, so every week on Tuesdays, mostly every week, the Court of Appeals issues new opinions that come with that, and so I always take the time. A good attorney should take the time to read over the opinions that come out from the Court of Appeals. And so basically, if you have an outcome in court that you don’t like—you think there was some kind of issue with the ruling—I know of course you need to talk to an attorney about what that might be. They present in many different forms, but you may possibly be able to appeal it. And so, this was a case that was appealed and I read the facts and I just thought this was really good information to bring to our listeners. So I’ll just go over the facts of the case at a bare minimum and really just talk about the importance of this. 

Jen: All right, let’s dive in. 

Sarah: Yeah, so this, this came out from the Court of Appeals in November of 2023, so not too long ago, and I think it might be going to the Supreme Court at this time. But there isn’t a ruling from the Supreme Court, so the Supreme Court acts like a check on the Court of Appeals. So if you don’t like the Court of Appeals decision and you think there’s still some kind of grounds, still an argument to be made, then you can have, you know, petition it to go to the Supreme Court of North Carolina. We’re not talking about DC here. We’re talking about, you know, district court is family court and you’re going to the North Carolina Court Appeals, you’re going to the Supreme Court of North Carolina. And hey, if you wanna take it all the way to the, you know, US Supreme Court, you can petition them. But they can always be like, “Nah, we’re not even gonna read that shit.”

Jen: If you feel like your constitutional right has been violated in some way. 

Sarah: Right. Today, we’re in the Court of Appeals for North Carolina, and this case comes out of Guilford County, the original case in the district of Greensboro. So basically there was a mom and dad, they were married, they have a child, mom and dad separate, custody case ensues. They don’t go into great detail about this part of it, but there are some issues between mom and dad.  

Eventually, like CPS gets involved and for a second the child goes and lives with the paternal. So dad’s mom, paternal grandma, and then dad files emergency custody. It seems like there’s some alienation issues from mom, so it sounds like she’s really extreme, maybe trying to take the child, not letting anyone see the child doesn’t really go into those facts. It just says this, this happened ultimately, dad ended up with primary custody, physical custody, and so legal custody mom only had two supervised visitations a month and for one hour each. So that’s like extremely limited visitation. So something was wrong with mom. 

Fast forward for a bit. That was in 2019 when dad got that order of sole legal and primary custody, and mom got the supervised visits. Then in 2022, dad gets diagnosed with colon cancer and reading everything, there seems to be a clue that this is not gonna be survivable for dad. So dad, on August 25th, specifically 2022, files a motion to modify custody. Then on August 29th, so four days later, his mother, the maternal grandparent files a motion to intervene in the custody case. And then on August 30th, dad died. 

Jen: Bless that happened real fast. 

Sarah: Yeah. Happened real fast. But the point of it is that this was really important to happen because if the grandma had not filed a motion to intervene while dad was still alive, she would never have the chance to file for custody. She would have to file an emergency custody and prove mom unfit. And that’s a whole other hurdle you have to prove mom, like completely unfit, unconstitutional rights or, you know, she’s violating her constitutional right as parent, not, you know, parenting to the degree that she should.

And just prior to dad passing while he was sick, they were actually verbally just going by a week on week off. So, something had happened to make dad more agreeable to mom having more custody. So it didn’t sound like fitness was gonna be an issue for mom, or it would be a hard hurdle for grandma to prove that she was unfit at that time.

Jen: Gotcha. Okay. 

Sarah: And that’s why this case was appealed because mom said, “Well, wait a second, you know, my understanding,” or at least her attorney’s understanding, “that once a parent passes, the custody case abates.” That means it’s no longer alive. There’s only one living parent. And as a biological parent, your rights are the most important rights of anyone seeking custody. So therefore, it should just be mom. She has custody and the case is done. 

Jen: The end.  

Sarah: You can’t even, there’s no case for you to intervene in. And so that’s what they appealed, because the district court was like, no, she filed in time. She filed, you know, a day before dad died, so she like got her foot in the door. And the Court of Appeals says, “Yeah, that’s right.” And I think this is just important for listeners to know because if there’s, if you’re going through a process where you’re diagnosed with cancer or some kind of terminal illness, to really plan this custody part out. I know it’s easy to kinda get lost in the, I don’t know the illness of itself, but there are legal aspects that say when, when someone can file in a case for custody and what has to be proven. And that’s really important for people to know.

Jen: Well, and we get calls all the time from the, part of what I do with the firm is, I like to say, micromanage the client intake experience. And so when people are trying to, when they are reaching out to us to inquire about services, we get a lot of calls about an aunt and or an uncle or something like that, wanting to get custody of a child or, you know, a grandparent a lot of times. One of our attorneys has a very intense grandparent custody case right now. And I know that you’ve, you’ve had them as well. And so this is such important information to know because one, you never know what’s gonna happen in life, first of all. And we wanna make sure kids are taken care of. And especially if you like this poor gentleman who was ill and had primary or sole custody, I can’t remember exactly what it was, you wanna know that beyond your passing, you know that your children are gonna be taken care of. 

Sarah: And whether or not mom got her act together, it was pretty clear from the facts of the case that there was alienation. I’m sure that dad’s family thought it when he passes that if mom gets custody, we’re never gonna see these kids again. Well, I think it was one kid. But that does happen. And if he were to pass before they filed a motion to intervene, they would’ve been out of luck. You cannot intervene at that point after he would’ve passed. Unless, like I said before, obviously if there’s issues on un-fitness, if mom was doing drugs, not taking care of the kid, then anyone can file for emergency custody and seek custody if those facts are true.

But that’s a big hurdle. That is a big hurdle to overcome and take custody from a biological parent. But in this case, you know, they, they spoke to some attorney or the attorney spoke up and said, “Hey, if this is terminal and this is gonna happen, you’re concerned about it. We need to take action.” And it was important too, that dad filed that motion to modify it on the 25th of August, because that opened the case back up. And the case has to be, you know, alive you would say, just happening and not like permanent custody was found 10 years ago. So that’s another piece of the puzzle. It’s very complex. You know, are there ongoing custody issues? And the court in this case looked at it and said, “Yeah, dad filed that motion to modify.” So there was, and it did sound like the court looked at it closely. Yeah, he had agreed to like week on, week off with mom, because he was sick and things had changed and he was sick and you know, that’s gonna cause an issue with the kids if he can’t physically do what he needs to do.

Jen: Mm-hmm. 

Sarah: And then they filed the motion to intervene. It was all done correctly and done just in time for dad, you know, his passing. And I just want people out there to know that. Otherwise, like I said before, you have to look to emergency custody or to make sure there’s an ongoing custody action. If it’s been dead and no actions have taken place for years, then the court’s gonna be like, “No, you can’t intervene.” Even for like grandparent visitation, which is different from custody, it’s this whole other battle just trying to get some visitation. You have to show the court that it’s in the best interest of the children and why the biological parents’ wishes that you not see the kids or grandparents not see the kids, should be overruled by the court pretty much. So it’s just one of those end-of-life planning things for anyone listening that has concerns or might be going through illness to think about. 

Jen: Well, and I was just gonna say with, like with end of life planning and we’ve had another episode, “Till Death or Divorce Do Us Part,” where we had a very knowledgeable, experienced and fun estate planning attorney on, Adam Hopler. And so when you think of end-of-life planning, you think of those kinds of documents, right? Powers of attorney, your will, and your trust and estate planning, all of that kind of stuff. So what if somebody…I mean, it sounds like to me that a will would if, if the will just said, “If I die, my mother, so paternal grandmother, gets the kids.” Like that’s not gonna work? 

Sarah: No, it doesn’t matter. No, not at all. And then that’s important. And so many people ask that question, like, if I have shared custody and I die, then I want my mom to have my portion of the custody. No, that’s not how it works at all. And if you die, then dad or mom, your other parent is gonna get sole custody and otherwise, the court says they can decide who the kids associate with. So you die and your ex spouse, the dad or mom that you share children with, doesn’t like your parents and doesn’t like your side of the family, then they can pretty much just cut off your side of the family.

Jen: Yeah. 

Sarah: Unless you plan accordingly and, you know, do, like in this case, unfortunately, a lot of times you don’t expect people to die in a car accident or something else, but it’s something to think about and just saying it in your will is not gonna be enough. 

Jen: You know, situations like end of life and passing, and in family law, you know, separation, divorce, custody, emotions run so high in those areas of law with the folks that we work with, that are going through those and under those situations, and understandably so. However, the law doesn’t really allow for emotion. 

Sarah: No. 

Jen: And so, you know, we’ve had situations quite recently of folks reaching out that they are an aunt or an uncle who have been in a, you know, they’ve been what they feel like is a very important, you know, relationship with this child. And now maybe something else has fallen apart in the adults of the relationship. Not mom and dad, but you know, sister and brother or whatever. And now they want to try to pursue some sort of visitation or custody because now the parent is withholding the children from them. And it’s just kinda like, Sorry. 

Sarah: Yeah. Like I said, there’s constitutional rights as a parent, as a biological parent, and it extends to deciding who your children associate with. So you’re kind of outta luck. It’s a really high burden to overcome, to get like some weekend visitation here and there. 

Jen: Yeah. In some ways, understandably. I mean, in a lot of ways, understandably som I mean, you are a mom. I mean, you can’t imagine if somebody just could just willy-nilly try to file something in court, because they wanted to spend more time with your daughter. 

Sarah: Yeah. Get outta here. No! So it’s understandable that the law is like that, but you have to understand the complexity of cases where, and like we said, there are motions taken out of it. Like dad passed away, so mom, just a hundred percent gets custody. And this grandma, who clearly was a part of this child’s life, had custody of her for a little bit and was close with her son would never see this child again. So luckily they spoke to an attorney, they timely filed everything and the Court of Appeal says, “Yeah. She can intervene in this case because there were ongoing custody issues and she timely filed everything and got her foot in the door.” So that’s just something to think about, if you are hit with some kind of illness, you have concerns. Even if you don’t think it’s terminal, have a plan in action. Have an attorney on speed dial pretty much to be like, things are going downhill. I need to talk to someone about my custody case. Know that your attorney, like if I was representing dad in this case, I wouldn’t be able to represent grandma. 

Jen: Right. 

Sarah: So I would have to, you know, make sure that to refer grandma to another attorney, there’d be conflict of interest there because they would both be parties to the same case, what have you. So just adding a little extra complexity to everyone listening, like, what do I need to do? Basically, you know, just contact an attorney. Grandma would need to have their own attorney, family law attorney to work in conjunction with dad’s attorney in this case and kind of, you know talk about what their plan can be, the timing of it, and I mean, grandma literally filed the motion to intervene the day before dad died. 

Jen: Which I can’t imagine with everything else going on. Right? The actual real life emotional side of that too. But I mean, speaking to the timeline here, and you’ve mentioned how important this timeline was. And so, you know, we have folks who reach out to us a lot and say, “Well, do I have to have an attorney?” You don’t have to have an attorney. But knowing these timelines, the importance of making sure that these actions get filed in court, there’s a record in court that this happened before, all of this is detrimental to potentially the wellbeing of the child. You know, depending on how close this relationship and stuff was.

Sarah: Clearly mom or dad and grandma both had attorneys and communicated enough so that dad filed his motion to modify, you know, a few days before grandma intervened, then right before his death. So they made a really smart decision to talk to the family, I’m sure on his deathbed, his wishes for, you know, his daughter or son, to be taken care of and to remain in contact with his family and knowing the actions of mom in the past, that was not gonna happen after his death. So I can’t imagine what he was thinking about then. 

Jen: Well and I think too, you’ve mentioned having to prove a parent unfit. What, in your experience, having experience with, you know, grandparent cases and things like that, or people that are trying, maybe you’ve, you are, you’re representing the parent who someone else is trying to prove is unfit, what does the law look like around that? Like what is the standard of being able to potentially prove that a parent is unfit?

Sarah: Yeah, and the judge ultimately has a decision in this, but a lot of times we see cases and it’s extreme mental health, like mental health issues, drug use, alcohol use. I mean, they’re clearly not putting their child first and their decisions are alienating the other parents perhaps. Physical abuse, just endangering the child. If we file emergency custody, there’s really only three. I don’t know if we have an episode. You know, three little prongs that you can meet to get emergency custody on the initial filing. And, and that’s to get, like, custody that day when the judge reviews it, but that’s if the child is in physical danger, like immediate harm could happen to this child. The other one would be sexual abuse allegations, obviously very important. And then the third would be removing the child from the jurisdiction in North Carolina, like mom just up and left and went to, you know, Massachusetts or to Canada, or something like that with the kid. Or threatening to take the child out of North Carolina. Threatening to take the child out of the, you know, United States. We see that too, a lot of times when people immigrate from other countries, they get concerned, oh, they’re only here on a green card, they’re gonna take the child and go back. 

Those kinds of allegations are good standing for you to file emergency custody. So then you have another hearing to show the court kind for everyone to have due process, because the court made the decision just off of your words, saying like, “They’re saying this. I think dad’s gonna do that.” So the judge says, “Well, that’s really concerning if true. Well, let’s have a hearing to hear from dad on that.” And you come back, and then if someone is just being completely reckless with their decisions, drugs, alcohol, mental health, then the court can put an order in place, like in this, this case, how they did at one point with mom had, you know, supervised visitation just once or twice a month. Something was really bad in that case.

Jen: Mm-Hmm. Interesting. 

Sarah: And once that happens, and we see this a lot with grandparents that have children who battle with mental health issues, drug abuse, and they raise the grand babies from the start. And then it gets to, the kids are in school. All of a sudden the school wants, you know, some legal papers saying, hey, do you have custody? Do you have legal custody? That’s when grandparents, you know, really come knock in and say, I need some kind of paperwork. I’ve had this kid, raised this kid pretty much as their parent since their birth because my son or daughter is just like nowhere to be found.

Jen: Mm-Hmm. 

Sarah: So then we can file for custody then. 

Jen: And it truly does happen. I can’t believe I didn’t think about this now, but we’ve recently had an initial consultation for some grandparents who unfortunately their child was battling an illness for a while. And unfortunately did end up passing away. And then after the fact, you know, learned how not great the other parent was. And so now they’re trying to find out how they can, you know, get custody and everything. And so to your point, after, because I was, my heart was wrapped up in this situation. And I’m talking to the attorney who did the consultation and, you know, she was like, I wanna do everything that I can. But there is a bit of a hurdle of proving there may be enough here to try to get some sort of emergency custody or to, you know, to try to. But there, I don’t believe that there was already a custody action established. 

Sarah: Right. Yeah. It’s really hard to meet that burden to get custody a lot of times. And just having an absent parent sometimes is enough, but then a lot, they just come outta the woodwork. All of a sudden they wanna be a parent and like, you have not been around for years. 

Jen: Oh. Especially if they’re gonna start getting hit for child support. Then all of a sudden they wanna be a parent.

Sarah: Right. And that’s a whole different conversation too. They recently had a new Court of Appeals opinion about a same sex couple, two women who have, one person undergoes, you know, in vitro. I don’t know. She gets inseminated in some fashion way or form. And so then she’s trying to go after the other parent who wants custody. So, mom number two wants custody, shared custody of this child they raised together. And then mom number one, who I guess birthed the baby, says, “You know, well I want child support.” And then all of a sudden, mom number two says, “Uh uh, I ain’t a biological parent. I’m not gonna pay child support.”

Jen: Wow. 

Sarah: And this new order came out saying, “Oh yeah, she’s not a biological parent.” But it was also an opinion that comes out in pretty much is anti same sex marriage. But that’s a whole different topic. Well, we can delve into that opinion one day. 

Jen: Yeah.

Sarah: But you know, the importance is there’s so much complex stuff when it comes to, “Hey, I just have a relationship with this kid. I take care of this kid. This is pretty much my child. You know, regardless of whether or not I’m the biological parent.” And unfortunately there’s laws surrounding that, and it’s not so easy as this kid looks at me as a parent. Even maybe at the end of the day it should be like that. Currently it’s just not. 

Jen: Yeah. And we always think in that invincibility complex. Like, that’s them, that’s not me. But yeah, it could very easily be you. 

Sarah: Stuff changes. People change and they get vindictive. And they get stupid. And they get selfish. And unfortunately it can affect children.

Jen: Yeah. They’re unfortunately all too often, the rope and the tug of war.

Sarah: And it’s like, “Hey, what about this cute little being right here?” Let’s think about their best interest. But it’s not that easy. 

Jen: People don’t get along. 

Sarah: I know, I know. 

Jen: So we also, you mentioned at the top of it, alienations, like parental alienation. And we have another episode dedicated to that, where we had a PhD level psychologist, Dr. Julian Lemond, to talk about that. So that’s a very interesting, very tough thing to prove in court from what I remember. But definitely check out that episode if you feel like you’re facing some of that or being alienated, all that stuff. So lots of good information can be found here.

Sarah: And as this case points out, it’s not the center of the case, but that’s enough to change custody completely. So definitely speak to an attorney. 

Jen: And as always—

All: Ain’t that some sh*t. 

Previous Post
Same-Sex Divorce in North Carolina—Explained
Next Post
How To Find the Best Divorce Support