Two children who watched as their mother’s relative killed their father in Charlotte could end up back in her custody, court documents show.
Their mother challenged a trial court’s decision to keep her two 11-year-old children under their grandmother’s care. The grandmother, who is the children’s father’s mother, had “chronic temporary” custody of the children for nearly three years after their father was shot dead, the mother’s legal appeal states.
The mother, 31, in an appeal filed earlier this year in the North Carolina Court of Appeals, argued the court could not lawfully grant the grandmother custody unless they found her unfit or her conduct inconsistent with her constitutional right to have custody of her children.
The appeals court this week returned the case back to the trial court, nullifying previous rulings which granted the 49-year-old grandmother custody.
Sons left fatherless, stuck in custody battle
The children’s mother and father, who were both originally from Onslow County, divorced in 2015, according to court documents. By 2016, he had custody of the children, and their mother was allowed to visit.
By 2020, he was dead.
Damario Tillman, the children’s father, was killed at 29-years-old while picking his kids up from a party May 2020, family told news . The kids were there, according to court documents. So was their mother, Tillman’s ex-wife of five years.
Darryanna Hearn, now 30, was arrested and charged with murder, according to Charlotte-Mecklenburg Police at the time. She was related to the children’s mother, according to court documents, though it is not clear how.
“My daddy was a great Marine. He put food on our plate every night,” Tillman’s son told WSOC in 2020. Dressed in military gear, he offered a salute in honor of his father.
Tillman, a father to three sons, was also studying for his masters degree and mentoring at a men’s shelter, media reported.
After her son’s death, the grandmother immediately filed for and was soon granted temporary emergency custody of her grandchildren. She’d “practically raised the minor children since they were months old,” the court found.
Under the agreement, the mother was still allowed to visit her children.
But she didn’t, according to court documents.
For three years, the children have been “flourishing” under their grandmother’s care and should maintain their current school life balance and routine, their therapist said in court.
According to the grandmother, the mother has not supported therapy and does not follow any therapist recommendations. She also exposes the children to her family members, who continue to make threatening remarks about the grandmother and the rest of the family, the grandmother alleged.
‘Chronic temporary custody’
In September 2021, about a year into the grandmother’s custody of the children, a court denied her motion to modify the parenting agreement made between her son and his ex-wife. It did, however, renew her temporary custody of the children.
After court, the mother emailed the children’s school saying a court dismissed the grandmother’s custody. She asked for her children to be released to her.
The grandmother quickly emailed the school clarifying she did still have custody and cautioning that the mother was unstable and would likely try to flee with the two children. She also brought it up at a late September court date.
The mother was not allowed to rebuttal with evidence then, her appeal alleges.
A few months later, in November 2021, the grandmother was again granted temporary primary custody, and the court established an indefinite shared holiday schedule between the two women.
After 90 days — at what was supposed to be a review hearing — the court planned to set a custody date and said it would not be moving the children from their school, according to the appeal.
Now, the mother is pushing for custody of her children and arguing the court did not have the right to extend the grandmother’s custody.
A wide set of custody laws and other statutes govern family court matters that involve parental rights, children and child support.
In North Carolina, non-parental rights are generally limited unless there’s a custody order, and temporary orders are easier to overturn or change. Issues like neglect or abuse and abandonment can trigger a court terminating a parent’s right to legal and physical custody.
In granting the mother’s appeal, judges wrote: “…The trial court erred by applying the ‘best interest of the child’ standard without first finding that mother was unfit.”