In Re Custody of Stancil

179 S.E.2d 844 (1971) 10 N.C. App. 545

In re CUSTODY OF Brian Kelly STANCIL (69 J 206).
In the Matter of CUSTODY OF Brian Kelly STANCIL (70 CVD 4024).

No. 7110DC101.

Court of Appeals of North Carolina.

March 31, 1971.

W. A. Johnson, Lillington, for Jacqueline I. Stancil, appellant.

Ellis Nassif, and Boyce, Mitchell, Burns & Smith by F. Kent Burns, Raleigh, for Mrs. B. A. Porter, appellee.

MALLARD, Chief Judge.

Mrs. Stancil makes several assignments of error, among them being that the competent evidence does not support the findings of fact; that the trial judge failed to find the facts as shown by the evidence; that the conclusions of law are incorrect; that prejudicial error was committed in awarding custody of Brian to the paternal grandmother; that the trial judge committed prejudicial error in giving the grandmother the right to say when the mother could visit the child; and in entering and signing the judgment.

We do not deem it necessary for decision in this case to recapitulate the evidence. Suffice it to say that Brian, who was born 15 April 1960, testified that he was scared of his mother and expressed a preference to live with his grandmother, Mrs. B. A. Porter. A child's preference as to who shall have his custody is not controlling; however, the trial judge should consider the wishes of a ten-year-old child in making his determination. Kearns v. Kearns, 6 N.C.App. 319, 170 S.E.2d 132 (1969). In James v. Pretlow, 242 N.C. 102, 86 S.E.2d 759 (1955), the rule is stated:

"Where one parent is dead, the surviving parent has a natural and legal right to the custody and control of their minor children. This right is not absolute, and it may be interfered with or denied but only for the most substantial and sufficient reasons, and is subject to judicial control only when the interests and welfare of the children clearly require it. (citations omitted)

* * * * * *

The wishes of a child of sufficient age to exercise discretion in choosing a custodian is entitled to considerable weight when the contest is between parents, but is not controlling. Where the contest is between a parent and one not connected by blood to the child, the desire of the child will not ordinarily prevail over the natural right of the parent, unless essential to the child's welfare." (citations omitted)

Under G.S. § 50-13.2(a), the trial judge, in a custody proceeding, shall award the custody of a minor child to such person, agency, organization or institution as will, in the opinion of the judge, best promote the interest and welfare of the child. The statute expresses the policy of the State that the best interest and welfare of the child is the paramount and controlling factor to guide the judge in determining the custody of a child.

In Greer v. Greer, 5 N.C.App. 160, 167 S.E.2d 782 (1969), Judge Morris said:

"In upholding the order of the trial court we recognize that custody cases generally involve difficult decisions. The trial judge has the opportunity to see the parties in person and to hear the witnesses. It is mandatory, in such a situation, that the trial judge be given a wide discretion in making his determination, and it is clear that his decision ought not to be upset on appeal absent a clear showing of abuse of discretion."

In the years 1969 and 1970, two different judges heard evidence on three different occasions relating to the custody of Brian and denied Mrs. Stancil custody. Mrs. Stancil contends that the trial judge committed error in not finding that she was a fit and suitable person to have the custody of Brian. We do not agree. In the judgment appealed from, the trial judge made extensive findings of fact, among which was the finding, based on competent evidence, that Mrs. Stancil was receiving medical treatment for mental disorders. The trial judge concluded that he was not able to find that Mrs. Stancil was a fit and suitable person to have custody of the child and that it was for the best interest and welfare of Brian that his custody be placed in the grandmother, Mrs. B. A. Porter.

Mrs. Stancil contends that some of the findings of fact are not supported by the evidence. We hold that in this case the material facts found by the trial judge are supported by competent evidence. Immaterial findings of fact are to be disregarded. Widows Fund of Sudan Temple v. Umphlett, 246 N.C. 555, 99 S.E.2d 791 (1957). In Crosby v. Crosby, 272 N.C. 235, 158 S.E.2d 77 (1967), it is said:

"The court's findings of fact as to the care and custody of children will not be disturbed when supported by competent evidence, even though the evidence be conflicting."

Mrs. Stancil argues that the trial judge did not find the facts as shown by the evidence. The trial judge is not required to find all the facts shown by the evidence. Baillie Lumber Co. v. Kincaid Carolina Corp., 4 N.C.App. 342, 167 S.E.2d 85 (1969). It is sufficient if enough material facts are found to support the judgment. 1 Strong, N.C. Index 2d, Appeal and Error, § 57, pp. 227, 228.

Mrs. Stancil contends that the conclusions of law set out in the judgment are not correct. After finding facts, a conclusion of law is a proposition arrived at by the application of rules of law to the facts. In 53 Am.Jur., Trial, § 1132, a conclusion of law is said to be "(t)he conclusions drawn by the trial court in the exercise of its legal judgment from the facts found by it * * *." We are of the opinion that the conclusions of law stated are adequate and are supported by the evidence. These support the order awarding the custody of Brian to Mrs. B. A. Porter.

In 3 Lee, N.C. Family Law, § 224, p. 24 (3d Ed. 1963), it is said that "(w)here there are unusual circumstances and the best interests of the child justifies such action, a court may refuse to award custody to either the mother or father and instead award the custody of the child to grandparents or others." We do not think that under the circumstances of this case, the trial judge abused his discretion in awarding custody to the paternal grandmother. No medical evidence was offered by either of the parties. It is observed that an order for the custody of a minor child may be modified or vacated at any time, upon motion in the cause and a showing of changed circumstances. G.S. § 50-13.7.

Mrs. Stancil also contends (but cites no authority to support this contention) that the trial judge committed error in granting to Mrs. B. A. Porter the right to determine the times, places and conditions under which she could visit with Brian.

In 2 Nelson, Divorce and Annulment, § 15.26 (2d Ed.Rev. 1961), it is said:

"The right of visitation is an important, natural and legal right, although it is not an absolute right, but is one which must yield to the good of the child. A parent's right of access to his or her child will ordinarily be decreed unless the parent has forfeited the privilege by his conduct or unless the exercise of the privilege would injuriously affect the welfare of the child, for it is only in exceptional cases that this right should be denied. * * * But when it is clearly shown to be best for the welfare of the child, either parent may be denied the right of access to his or her own child. * * *

However, the feasible exercise of a parent's right of visitation should be safeguarded by a definite provision in the order or decree of the court awarding the custody of the child to another person. The order should not make the right of visitation contingent upon an invitation from the party having the custody of the child, or require the consent of one parent for the other to visit the child, or provide that the parent shall have the right of visitation only at such times as may be convenient to the party having the custody of the child, thereby leaving the privilege of visitation entirely to the discretion of the party having the child in custody. * * *

* * * In determining the conditions under which a parent may visit a child, the age, health and best interests of the child and the convenience of the party having the custody of the child, as well as the nature of the relations existing between the visiting parent and the parties having possession of the child, are proper circumstances to be taken into consideration. Where it appears that difficulties and misunderstandings have arisen between the parties on account of attempts of a parent to visit a child, or that there are strong feelings of ill will existing between the parties, the court may properly require the visits to be made on neutral territory, such as the home of a third party, and may also permit the visits to be made out of the presence of the child's custodian and other persons who are unfriendly toward the visiting parent. As a further condition of retaining the custody of a child or enjoying the privilege of visitation, the court may prohibit each parent from attempting to poison the mind of the child against the other parent."

In the case of Willey v. Willey, 253 Iowa 1294, 115 N.W.2d 833 (1962), the trial court, after a hearing, gave the custody of the two children born to the parties to the father and provided that the mother should only have such "rights of visitation * * * as in the father's judgment shall be reasonable and proper for the best interests of the child." The Iowa Supreme Court in Willey held that unless there was danger to the child, it was error to provide that the wife's right of visitation should be at the discretion of the husband, and said:

"The rule is well established in all jurisdictions that the right of access to one's child should not be denied unless the court is convinced such visitations are detrimental to the best interests of the child. In the absence of extraordinary circumstances, a parent should not be denied the right of visitation."

In McCourtney v. McCourtney, 205 Ark. 111, 168 S.W.2d 200 (1943), it was held to be error to grant the father visitation rights only with the written permission of the mother.

The weight of authority seems to be and we hold that a parent's right of visitation with his or her child is a natural and legal right and that when awarding custody of a child to another, the court should not deny a parent's right of visitation at appropriate times 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. The court should not assign the granting of this privilege of visitation to the discretion of the party awarded custody of the child.

When the custody of a child is awarded by the court, it is the exercise of a judicial function. G.S. § 50-13.2. In like manner, when visitation rights are awarded, it is the exercise of a judicial function. We do not think that the exercise of this judicial function may be properly delegated by the court to the custodian of the child. Usually those who are involved in a controversy over the custody of a child have been unable to come to a satisfactory mutual agreement concerning custody and visitation rights. To give the custodian of the child authority to decide when, where and under what circumstances a parent may visit his or her child could result in a complete denial of the right and in any event would be delegating a judicial function to the custodian.

When the question of visitation rights of a parent arises, the court should determine from the evidence presented whether the parent by some conduct has forfeited the right or whether the exercise of the right would be detrimental to the best interest and welfare of the child. If the court finds that the parent has by conduct forfeited the right or if the court finds that the exercise of the right would be detrimental to the best interest and welfare of the child, the court may, in its discretion, deny a parent the right of visitation with, or access to, his or her child; but the court may not delegate this authority to the custodian. On the other hand, if the court does not find that the parent has by conduct forfeited the right of visitation and does not find that the exercise of the right would be detrimental to the best interest and welfare of the child, the court should safeguard the parent's visitation rights by a provision in the order defining and establishing the time, place and conditions under which such visitation rights may be exercised. In doing so, the court must be controlled by the principle that the best interest and welfare of the child is the paramount consideration in determining the visitation rights, as well as in determining the right to custody, and that neither of these rights should be permitted to jeopardize the best interest and welfare of the child. Swicegood v. Swicegood, 270 N.C. 278, 154 S.E.2d 324 (1967).

In the case before us the court did not find that Mrs. Stancil by her conduct had forfeited her right of visitation. Neither did it find that it would be detrimental to the best interest and welfare of Brian for the mother to be permitted to visit him. On the contrary, the court found that Mrs. Stancil should be permitted to visit with the child, and it was therefore error for the court to fail to include in the custody order a provision defining and establishing the time, place and conditions under which such visitation rights might be exercised.

The result is that the order awarding custody of Brian to the grandmother, Mrs. B. A. Porter, is affirmed, and the provision therein "and further, that Mrs. Jacqueline I. Stancil shall visit with said child, Brian Kelly Stancil, at such times and at such places and under such conditions as Mrs. Bruce A. Porter may deem proper for the best interest of the child" is ordered stricken. This cause is remanded with instructions that the court shall hear such competent evidence as the parties may offer, make such findings and conclusions relating to visitation rights as are appropriate and enter such order or orders relating to the visitation rights of Mrs. Stancil as will, in the opinion of the judge, best promote the interest and welfare of Brian.

Affirmed in part and remanded with directions.

PARKER and GRAHAM, JJ., concur.