In Re Custody of Hughes , 254 N.C. 434 ( 1961 )

119 S.E.2d 189 (1961) 254 N.C. 434

In re Custody of Michael Randolph HUGHES and Richard James Hughes, Minors.

No. 307.

Supreme Court of North Carolina.

April 12, 1961.

Joseph Corey, Colorado Springs, Colo., and Fouts & Watson, Burnsville, for respondent-appellant.

Bill Atkins and Anglin & Bailey, Burnsville, for petitioner-appellee.

RODMAN, Justice.

Appellant's challenge to the facts found by Judge Huskins is based on her assertion that there was no competent evidence to support the findings, because all of the evidence offered by petitioner was by affidavit, thereby depriving her of her constitutional right to cross-examine the witnesses for petitioner. If appellant wished to cross-examine the witnesses, she should have objected when the affidavits were offered or asked permission to cross-examine. She did neither. Her silence gave assent to the manner in which the evidence was presented. She cannot now complain with respect to a method of trial approved by her. Harriet Cotton Mills v. Local Union No. 578, 251 N.C. 218, 111 S.E.2d 457.

The other assignments are directed to the power of the Superior Court of North Carolina to determine the right to custody of children living in the county where the court was sitting. Appellant contends the District Court of Colorado had jurisdiction of the children then living in North Carolina, because it had jurisdiction of the parents; and because of such jurisdiction of the parents, findings made by that court were entitled to full faith and credit, foreclosing North Carolina's courts of the right to inquire as to the welfare of the infants.

It may be conceded that the parties before the Colorado court are bound by the findings then made, but Judge Huskins was not investigating the rights of the parents inter se. He was investigating facts necessary to provide for the welfare of the children. They were before him and admittedly had been in North Carolina for more than a year before any court was called upon to pass on the question of custody.

Each parent has a duty to care for his or her minor child. When the failure is wilful, the neglect is criminal. G.S. § 14-322. Because the law presumes parents will perform their obligations to their children, it presumes their prior right to custody, but this is not an absolute right. The welfare of the child is the crucial test. When a parent neglects the welfare and interest of his child, he waives his usual right of custody. Cleeland v. Cleeland, 249 N.C. 16, 105 S.E.2d 114; In re Mc-Whirter, 248 N.C. 324, 103 S.E.2d 293; Griffith v. Griffith, 240 N.C. 271, 81 S.E.2d 918; Story v. Story, 221 N.C. 114, 19 S.E.2d 136. As said by Parker, J., in In re Gibbons, 247 N.C. 273, 101 S.E.2d 16, 20: "It is an entire mistake to suppose the court is at all events bound to deliver over a child to his father, or that the latter has an absolute vested right in the child. Doubtless, parents have a strict legal right to have the custody of their infant children as against strangers. However, courts will not regard this parental legal right against strangers as controlling, when circumstances connected with the present and prospective welfare of the child clearly exist to overcome it, or when to enforce such legal right will imperil the personal safety, morals, or health of the child."

Because the welfare of the child is the crucial test, a court within whose jurisdiction a child is living has the right and duty, upon request of the person having custody of the child, to determine facts necessary to make an award. Neither the child nor the custodian is bound by an agreement between the parents or by facts found in an action in another State where they had no right to be heard. Holmes v. Sanders, 246 N.C. 200, 97 S.E.2d 683; Weddington v. Weddington, 243 N.C. 702, 92 S.E.2d 71; Hoskins v. Currin, 242 N.C. 432, 88 S.E.2d 228; Gafford v. Phelps, 235 N.C. 218, 69 S.E.2d 313; Story v. Story, supra.

The correct rule was succinctly stated by Justice Cardozo in Finlay v. Finlay, 240 N.Y. 429, 148 N.E. 624, 625, 40 A.L.R. 937. He said: "The jurisdiction of a state to regulate the custody of infants found within its territory does not depend upon the domicile of the parents. It has its origin in the protection that is due to the incompetent or helpless. (Citations.) For this, the residence of the child suffices, though the domicile be elsewhere. (Citation.) But the limits of the jurisdiction are suggested by its origin. The residence of the child may not be used as a pretense for the adjudication of the status of parents whose domicile is elsewhere, nor for the definition of parental rights dependent upon status."

Apparently the courts of Colorado apply the rule announced by this Court and by the New York courts. People ex rel. Wagner v. Torrence, 94 Colo. 47, 27 P.2d 1038, 1039. There the father sought custody pursuant to a decree of a Wisconsin court of children in Colorado with the mother. The court said: "Here he was met face to face with the state, the third party in interest in cases of this character, ready to administer to the protection of the helpless child found within its borders. This jurisdiction does not depend on the domicile of the parents, neither does it stand by for a judgment of another state * * *".

Since the Superior Court of Yancey County had the duty, upon petition filed, to investigate and find what was in fact for the best interest of the minors, and in the performance of that duty heard evidence relating to happenings and conditions in North Carolina, and made findings based thereon, it follows that the judgment should be and is

Affirmed.