Friday, January 20, 2006
Case Law Development: North Carolina Court of Appeals Reverses Trial Court's Use of Tender Years Presumption
Some presumptions die hard. Despite the significant findings of fact weighing against giving custody to Mother, a North Carolina trial court based its split physical custody award of the 28-month-old child on its "personal notice of the natural bond that develops between infants and a mother, especially when the mother breast-feeds the infant" and the fact that "the Court believes and finds that by the very nature of the age and gender of the minor child (28-month-old female), as it relates to the [Father], that placement with the [Father] would be a negative aspect in the weighing of the positives and negatives."
The Court of Appeals reversed, chastizing the lower court that "It has been the law for 30 years that a court may not base a custody decision, as between parents, on any presumption in favor of either the mother or the father, but instead must focus only on the best interests of the child as determined from the actual evidence before the court."
Greer v. Greer, 2006 N.C. App. LEXIS 183 (January 17, 2006 bgf)