Johnson v. Johnson

263 S.E.2d 822 (1980)

Michael Thomas JOHNSON
v.
Doris Batten JOHNSON.

No. 799DC514.

Court of Appeals of North Carolina.

March 18, 1980.

R. Gene Edmundson, Oxford, for petitioner-appellee.

Charles A. Bentley, Jr., Durham, for respondent-appellant.

PARKER, Judge.

Respondent-mother has not assigned error to that portion of the judgment awarding primary custody and control of the minor child, Thomas Hinton Johnson, to petitioner-father. Her contention is that the court erred in ordering her visitation with the minor child restricted to one weekend each month "within the presence of the father or some other designated representative of the father."

A noncustodial parent's right of visitation is a natural and legal right which should not be denied "unless the parent has by conduct forfeited the right or unless the exercise of the right would be detrimental to the best interest and welfare of the child." In re Custody of Stancil, 10 N.C. App. 545, 551, 179 S.E.2d 844, 849 (1971). In awarding visitation privileges the court should be controlled by the same principle which governs the award of primary custody, that is, that the best interest and welfare of the child is the paramount consideration. Swicegood v. Swicegood, 270 N.C. 278, 154 S.E.2d 324 (1967). The purpose of the award should not be to punish or reward a parent by withholding or granting the right of visitation. See, In re McCraw Children, 3 N.C.App. 390, 165 S.E.2d 1 (1969).

G.S. 50-13.5(i) provides that "[i]n any case in which an award of child custody is made in a district court, the trial judge, prior to denying a parent the right of reasonable visitation, shall make a written finding of fact that the parent being denied visitation rights is an unfit person to visit the child or that such visitation rights are not in the best interest of the child." (emphasis added). Clearly, the statute requires an appropriate finding of fact before the trial judge may completely deprive a noncustodial parent of the right of visitation. King v. Demo, 40 N.C.App. 661, 253 S.E.2d 616 (1979). However, we construe the statute to require a similar finding when the right of reasonable visitation is denied. Thus, where severe restrictions are placed on the right, there should be some finding of fact, supported by competent evidence in the record, warranting such restrictions.

In the present case the award of visitation privileges to respondent-mother is indeed restrictive. On the weekend per month when she is allowed to visit with the minor child, respondent-mother is only permitted to do so in the presence of the father or his designated representative. The court did find as a fact that respondent-mother had abandoned the child on 12 August when she moved out of the parties' home in Durham. Although evidence as to the circumstances of respondent-mother's leaving was conflicting, there was competent evidence in the record that she indicated in a note to her husband that she was leaving and intended the child to remain with him. The finding of fact, being supported by competent evidence, is conclusive on this appeal. Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77 (1967). However, that finding by itself does not support the type of restriction placed upon respondent-mother's visitation rights in the present case. The general rule is that abandonment, by itself, does not constitute sufficient ground to deny visitation rights completely, see, Annot., 88 A.L. R.2d 148, § 15, pp. 201-204 (1963), and this rule is in accord with the principle adopted by our courts that the purpose of denying custody or visitation rights is not to punish the noncustodial parent. See, In re McCraw Children, supra. Similarly, the purpose of imposing restrictions on those rights should not be to punish, but to protect the welfare of the child.

The only other finding of fact relevant to the award of visitation rights recites that "it is not in the best interests of said child to be taken from the home or out of the company of his father or someone else close to the minor child and carried to the State of New Jersey." In view of the tender age of the child, the trial judge acted within his discretion in determining that it would not further the child's welfare to have him carried back and forth between North Carolina and New Jersey to visit with his mother. However, that finding does not support the provision in the award preventing respondent-mother from visiting with the child out of the presence of petitioner-father or his representative. The record does not disclose that respondent-mother has ever attempted to carry the child away from this state without his father's consent, nor that the danger exists that she would do so now unless her visits are supervised. Neither does the record disclose that the child has ever been harmed physically by respondent-mother such that it would be inadvisable to permit her time alone with him. In any event, if there were evidence of this kind, the trial court was required to make findings of fact to support the restrictions imposed. Where hostilities exist between estranged parents, it may be difficult for the noncustodial parent to maintain a relationship with his or her child when required to exercise visitation only in the presence of the other parent or a member of the other parent's family who may share such hostilities. There are, of course, circumstances warranting such restrictions, but if they are imposed, they must be based on appropriate factual findings. In the absence of any such findings in the present case, we hold that the trial court erred in so limiting respondent-mother's visitation rights. Accordingly, that portion of the award relating to respondent-mother's visitation rights is vacated, and the case is remanded for further proceedings not inconsistent herewith.

Affirmed in part;

In part vacated and case remanded.

MORRIS, C. J., and HILL, J., concur.