215 N.C. App. 378
N.C. Ct. App.2011Background
- Bobbitt pled guilty to attempted statutory rape in Nov 2009; sentenced to 94–122 months and must register as a sex offender for 30 years.
- L.W. was born in March 2010 as a result of the attempted rape; paternity test shows Bobbitt with 99.99% probability of fatherhood.
- Bobbitt was not listed as biological father on L.W.’s birth certificate; L.W.’s last name given to Eizenga’s boyfriend at birth.
- Bobbitt filed a pro se complaint during incarceration seeking joint legal custody, reasonable visitation, a name change for L.W., and visitation for his parents.
- Eizenga moved to dismiss on failure to state a claim; an evidentiary hearing occurred; the trial court granted the motion to dismiss on Aug. 27, 2010.
- On appeal, Bobbitt argues the trial court erred by (a) dismissing visitation rights based on his conviction, (b) limiting contact due to sex-offender status, and (c) asserting visitation is impossible.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Bobbitt’s attempted statutory rape conviction bar visitation rights? | Bobbitt contends the statute does not bar custody/visitation for attempted rape. | Trial court held conviction and sex-offender status preclude visitation. | Conviction does not bar visitation; trial court erred. |
| Does Bobbitt’s sex-offender status bar visitation rights? | No statute prevents a parent with sex-offender status from pursuing visitation. | Sex-offender status justifies denying visitation. | No legal basis to bar visitation on sex-offender status; trial court erred. |
| Is visitation truly impossible due to status or law? | Visitation should be possible; laws do not prohibit contact with the child. | Visitation would be illegal under current criminal law. | Not addressed on the merits; case remanded for proceedings on custody/visitation. |
Key Cases Cited
- In re J.L., 183 N.C. App. 126 (2007) (conviction of statutory rape would not automatically terminate parental rights)
- S.N.R. Mgmt. Corp. v. Danube Partners 141, LLC, 189 N.C. App. 601 (2008) (motion to dismiss standard for failure to state a claim)
- Guyton v. FM Lending Services, Inc., 199 N.C. App. 30 (2009) (12(b)(6) standards; liberal construction of complaint)