Sheila Fuqua (“intervenor”) appeals an order denying her Motion to Intervene in a custody proceeding between her daughter, Sheena Fuqua (“defendant”) and the father of her granddaughter, Joshua Perdue (“plaintiff’). We affirm.
On 16 March 2007 defendant did not return the minor child to the plaintiff as scheduled. On 15 June 2007, plaintiff filed a motion to show cause and a motion for an ex parte order alleging defendant violated the custody order by refusing to return the minor child to plaintiff. The trial court granted plaintiff’s motion for an emergency ex parte protective order (“ex parte order”), ordered local law enforcement to assist plaintiff in obtaining physical custody of the minor child. The court granted plaintiff legal and physical custody of the minor child, pending further orders of the court and a full hearing on the merits. A hearing was scheduled for 27 June 2007.
On'20 June 2007, intervenor filed a motion to intervene, a motion for custody, and a motion to strike the ex parte order. Intervenor believed the trial court should allow her to intervene since she was the primary caregiver of the minor child since the child was born. Intervenor alleged, inter alia, the plaintiff’s seventeen-year-old girlfriend was taking care of the minor child, therefore the court should grant her custody of the minor child.
Plaintiff moved to dismiss intervenor’s motion, in part, on the basis intervenor lacked standing. On 16 July 2007, the Honorable James A. Grogan (“Judge Grogan”) of Rockingham County District Court denied intervenor’s motions on the basis that her allegations did not rise to the level of a substantial change in circumstances. In addition, Judge Grogan set aside the emergency custody order entered on 15 June 2007. As a result the court reinstated the 8 February 2006 order for child custody and visitation, and preserved the show cause order entered 15 June 2007 as well as the plaintiff’s motion for attorney’s fees for a later date. From this order, intervenor appeals.
Standing
The trial court denied the motion to intervene and, therefore, never addressed intervenor’s motion for custody. As a result, the sole issue before this Court is whether the trial court properly denied intervenor’s motion to intervene for lack of standing. Intervenor argues that she has standing and therefore the trial court erred in dismissing her motion. We disagree.
“Standing is a necessary prerequisite to a court’s proper exercise of subject matter jurisdiction. Standing is a question of law which this court reviews
de novo." Cook v. Union Cty. Zoning Bd. of Adjust.,
Standing in custody disputes is governed by N.C. Gen. Stat. § 50-13.1(a), which “grants grandparents the broad privilege to institute an action for custody or visitation as allowed in G.S. §§ 50-13.2(bl), 50-13.2A, and 50-13.50).”
Eakett v. Eakett,
Despite the statute’s broad language, our Courts have distinguished grandparents’ standing to seek visitation from grandparents’ standing to seek custody. In order for a grandparent to initiate a proceeding for visitation, there must be an ongoing custody proceeding and the child’s family must not be an intact family.
McIntyre v. McIntyre,
While this Court recognizes that intervenor satisfies the definition of “other person” because she was the primary caregiver since birth and she had a close familial relationship with the minor child, the grandmother is still required to allege parental unfitness. Despite the broad language of N.C. Gen. Stat. § 50-13.1, non-parents do not have standing to seek custody against a parent unless they overcome the presumption that the parent has the superior right to the care, custody, and control of the minor child.
Petersen v. Rogers,
While the court applies the best interest of the child analysis in a custody action between parents, to do so when the custody dispute is between a parent and a non-parent offends the Due Process Clause if the “parent’s conduct has not been inconsistent with his or her constitutionally protected status. ...” Id. If the non-parent can show the parent engaged in conduct inconsistent with his or her right to custody, such as abandonment, then the court can apply the best interest test to determine whether the non-parent should receive custody. Id.
Therefore, absent a showing by intervenor that the natural parents are unfit, have neglected the welfare of the child, or have acted
in a manner inconsistent with the paramount status provided by the Constitution, the intervenor does not have standing. “If a party does not have standing to bring a claim, a court has no subject matter jurisdiction to hear the claim.”
Estate of Apple v. Commercial Courier Express, Inc.,
Intervenor’s Arguments
Intervenor argues that because there was a motion for custody ongoing between the parents she need only set forth a claim that could demonstrate a change in circumstances. Intervenor, however, cites authority that provides standing for grandparents seeking visitation, not custody. Intervenor has failed to recognize that our Courts have made a distinction between grandparents seeking custody and those seeking visitation. Participation in a custody proceeding by itself is not a sufficient reason for parents to lose their constitutionally protected status absent a showing that the parents are unfit, have neglected the welfare of the child, or acted in a manner inconsistent with their protected status. Such a holding would offend the Due Process Clause of the Constitution.
The trial court denied the motion to intervene because there had been no substantial change in circumstances since the entry of the 8 February 2006 custody order. In the 8 February 2006 custody order, both parents were found to be fit and proper persons to have joint legal and physical custody of the minor child. By reinstating the 8 February 2006 custody order, the trial court indicated that both parents were fit and proper persons for the care of the minor child just as the trial court previously found on 8 February 2006.
Intervenor’s motion contains a general statement “[t]hat both the Plaintiff and Defendant have failed to shoulder the parental responsibilities attendant with the enjoyment of the constitutionally preferred status of the parents in a child custody case.” The factual allegations in the motion to intervene do not support this conclusion. Intervenor alleged that the father lost his job, obtained third-shift employment, and had a young girlfriend babysitting the minor child. Intervenor also alleged that the parents allowed the minor child to live exclusively with the intervenor for four months. These allegations are insufficient to indicate the parents “acted in a manner inconsistent with [their] constitutionally-protected paramount interest in the com
panionship, custody, care, and control of [their] child.”
Mason v. Dwinnell,
Intervenor failed to allege conduct sufficient to support a finding that the parents engaged in conduct inconsistent with their parental rights and responsibilities. Therefore intervenor could not overcome the presumption that the parents have the superior right to the care, custody, and control of the child, and lacked standing to intervene. Because we determine that intervenor lacked standing we need not address intervenor’s additional assignment of error. We affirm the trial court’s order, which dismissed intervenor’s motion to intervene.
Affirmed.