Routten v. Routten, 374 N.C. 571

Parties: John Tyler Routten (father) and Kelly Georgene Routten (mother), two children born 2004 and 2012; parties separated 2014 and disputed custody.
Trial court ordered mother to undergo neuropsychological evaluation; she obtained an evaluation but did not timely disclose the report and misrepresented aspects of it at the custody hearing.
On 9 December 2016 (amended 6 March 2017), the trial court awarded father sole legal and physical custody, denied mother visitation as not in the children’s best interests, allowed limited phone contact, and stated father could permit visitation at his sole discretion.
Mother appealed; the Court of Appeals majority vacated the custody/visitation order, holding the trial court must find a parent unfit before denying visitation and that the court improperly delegated visitation to the custodial parent.
North Carolina Supreme Court granted review and reversed the Court of Appeals: it held a trial court may deny a parent visitation based on a written finding that visitation is not in the child’s best interests (no separate finding of parental unfitness required) and treated the delegation-to-parent language as surplusage rather than reversible error.

Issue	Routten's Argument	Routten (mother)'s Argument	Held
Whether a trial court may deny a parent's visitation without finding the parent unfit	Denial valid under N.C.G.S. § 50-13.5(i) if court finds visitation not in child’s best interests	Denial violates constitutionally protected parental rights absent an express finding of unfitness	A trial court may deny visitation upon a written finding that visitation is not in the child’s best interests; no separate unfitness finding required; Moore v. Moore disavowed
Whether the court improperly delegated visitation decisions to the custodial parent	Any delegation is harmless/surplus because court already denied visitation; permissive language is a humane accommodation	Delegation impermissibly relinquishes a judicial function to the custodial parent	Delegation language was confusing but surplusage; interpreted as a non-reversible, humane accommodation and not reversible error

Petersen v. Rogers, 337 N.C. 397 (1994) (established parental-presumption rule in custody disputes involving a parent versus a nonparent)
Owenby v. Young, 357 N.C. 142 (2003) (explained Petersen presumption does not apply in disputes between two natural parents)
Moore v. Moore, 160 N.C. App. 569 (2003) (Court of Appeals decision applying Petersen to disputes between parents; expressly overruled here)
Adams v. Tessener, 354 N.C. 57 (2001) (confirmed custody between parents is governed by best-interest-of-the-child standard)
Burgess v. Your House of Raleigh, Inc., 326 N.C. 205 (1990) (statutory interpretation: courts must follow plain statutory language when unambiguous)
Carolina Power & Light Co. v. City of Asheville, 358 N.C. 512 (2004) (discussion of the ordinary meaning of disjunctive "or" in statutes)
Brewington v. Serrato, 77 N.C. App. 726 (1985) (court of appeals precedent that visitation determinations are judicial functions not subject to improper delegation)
In re Civil Penalty, 324 N.C. 373 (1989) (panels of Court of Appeals are bound by prior panels unless overturned by higher court)