Tillman v. Jenkins, 22-531

Background

Mother is the biological parent of two children; Father (the children’s father) had primary custody under a 2016 parenting agreement. Father was murdered in May 2020 by a member of Mother’s family while the children witnessed the murder.
Paternal Grandmother filed for emergency custody in July 2020; the trial court repeatedly entered orders awarding Grandmother temporary custody beginning 28 July 2020 and continuing through January 2021, September 2021, and November 2021.
At the 30 September 2021 hearing the court heard only Grandmother’s evidence, granted Mother’s Rule 41(b) dismissal of the emergency claim, but indicated it would enter a temporary custody order; Mother objected that no showing of unfitness had been made.
On 12 November 2021 the trial court entered a “Temporary Custody Order” awarding Grandmother primary custody, setting a 90-day review (but indicating the review was limited and a permanent custody date would follow after the school year), and establishing an ongoing holiday schedule.
Mother appealed, arguing the order was effectively permanent and the court improperly applied the “best interest” standard without first finding Mother unfit or that she acted inconsistently with her parental rights.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether this Court has jurisdiction (is the order temporary/interlocutory or permanent/final)?	Grandmother treated the order as temporary and interlocutory.	Mother argued the “temporary” order was permanent in effect (multi-year, no clear reconvening time), so appealable.	The order was effectively permanent (chronic temporary orders since July 2020, no clear/specific reconvening time), so the Court has jurisdiction.
Whether Grandmother had standing to bring the custody action.	Grandmother alleged facts (unstable housing, children’s therapy needs, risk of harm, refusal to support therapy) sufficient to show Mother acted inconsistently with parental status.	Mother argued Grandmother lacked standing to challenge a natural parent’s custody.	Grandmother adequately alleged conduct inconsistent with parental status and thus had standing to sue.
Whether the trial court could apply the “best interest of the child” standard without first finding Mother unfit or having waived her parental rights.	Grandmother and trial court argued that for temporary custody under N.C.G.S. § 50‑13.5(d)(2) best‑interest could govern without a prior unfitness finding.	Mother argued that because the order was effectively permanent, the court was required to find unfitness or waiver before applying the best‑interest test.	The court erred: because the order was permanent in nature, the trial court must first find Mother unfit or that she acted inconsistently with parental rights before applying the best‑interest standard.

Key Cases Cited

Turner v. Hammocks Beach Corp., 363 N.C. 555 (addressing interlocutory appealability generally)
Brewer v. Brewer, 139 N.C. App. 222 (temporary custody orders ordinarily interlocutory; characterization depends on substance)
Sood v. Sood, 222 N.C. App. 807 (temporary child custody orders are normally interlocutory)
Smith v. Barbour, 195 N.C. App. 244 (whether order is temporary or permanent is a question of law reviewed de novo)
LaValley v. LaValley, 151 N.C. App. 290 (temporary orders must be for reasonably brief periods; case-by-case assessment)
Maxwell v. Maxwell, 212 N.C. App. 614 (failure to state a clear reconvening time converts a temporary order to permanent)
Price v. Howard, 346 N.C. 68 (parental constitutional rights prevail unless parent is found unfit or has acted inconsistently with parental status)
Eakett v. Eakett, 157 N.C. App. 550 (grandparents may sue for custody but must overcome parents’ constitutional rights by alleging unfitness or inconsistent conduct)
Thomas v. Oxendine, 280 N.C. App. 526 (standing to initiate custody action is a question of law; grandparents must allege unfitness or inconsistent conduct)
Blanchard v. Blanchard, 279 N.C. App. 280 (standard of review for legal issues in custody appeals)