in the Court of Appeals 13 December 2017.
by plaintiff from order entered 23 February 2017 by Judge Lee
F. Teague in Pitt County No. 12 CVD 267 District Court.
and Smith, P.A., by John M. Martin, for plaintiff-appellant.
Der Have Family Law, by Leslie G. Van Der Have, for
Berry ("Plaintiff" or "Mr. Berry")
appeals from an order assigning primary physical custody of
his two children to their mother, Ashleigh Berry
("Defendant" or "Ms. Berry"). Plaintiff
has failed to show the trial court abused its discretion in
assigning Defendant primary physical custody. We affirm the
trial court's order.
Berry and Ms. Berry were married 22 October 2005. They are
parents of two children, C.B., born in 2008, and H.B, born in
2011. The parties separated on 28 January 2012. Mr. Berry
filed a complaint on 31 January 2012, which sought temporary
and permanent custody, and a motion for an ex parte
temporary custody order to "maintain the status quo
living arrangements" of the children throughout the
hearing process. Ms. Berry had removed the children from the
marital home and taken them to her parents' home. The
motion for ex parte temporary custody was heard on 3
February 2012, and a temporary custody order was entered on 7
March 2012. The court granted temporary physical custody of
the children to Ms. Berry, and secondary physical custody and
unsupervised daytime visitation to Mr. Berry.
May 2012, C.B. allegedly told Ms. Berry his father had
"put an x-ray in his hiney." Ms. Berry took C.B. to
the pediatrician, who found no physical indication of any
abuse. Ms. Berry filed a report with Pitt County Department
of Social Services ("DSS") on 25 May 2012, and DSS
determined her allegations did not justify further
temporary custody hearing on 29 May 2012, Ms. Berry presented
her concerns about Mr. Berry sleeping with or staying in the
same room as the children, presented allegations about Mr.
Berry's pornography usage, and re-asserted her
allegations concerning C.B.'s "x-ray incident."
The temporary order for child custody and child support was
read aloud in court and entered on 24 October 2012. This
order maintained the previous custody arrangements, allowed
Mr. Berry overnight visitation, but specifically decreed
neither parent should sleep in the same room as the children.
Ms. Berry continued negotiations for permanent custody
throughout 2012 and into 2013. A judgment granting absolute
divorce between Mr. Berry and Ms. Berry was entered on 25
Berry met his current wife, Jodie Berry ("Jodie")
in January 2013. Ms. Berry became upset after Jodie was
included in some of the children's activities. Custody
negotiations stalled at the end of July 2013.
Berry alleged she witnessed an incident of "sexualized
behavior" between the children in the bathtub on 31 July
2013. She stated the children told her it was something
"Daddy likes for them to do." On 1 August 2013, Ms.
Berry met with Julie Gill of Tedi Bear Children's
Advocacy Center ("TBCAC"). Ms. Gill reported their
conversations to DSS on 2 August 2013, and DSS accepted the
report for immediate investigation. The investigator
interviewed C.B., Mr. Berry, and Ms. Berry on 2 August 2013.
investigator scheduled forensic interviews and medical
examinations for the children at TBCAC on 6 August 2013.
Neither the interviews nor the exams revealed any
inappropriate sexual contact or evidence of sexual abuse.
TBCAC recommended DSS approve a Child and Family Evaluation
was conducted between 13 September 2013 and 12 October 2013.
After extensive interviews, the CFE concluded:
(a) [C.B.] was tremendously inconsistent in his versions of
events including the "x-ray allegations";
. . .
(c) [a]lthough Ms. Berry had expressed concerns about
Mr.Berry's level of attachment to [C.B.] and his prior
use of pornography, Mr. Berry's level of attachment to
[C.B.] was not extraordinary given the high conflict custody
matter and his prior use of pornography was within normal
. . .
(e) Ms. Berry demonstrated significant issues of control