determining evidence supported the conclusion of a substantial change in circumstances based on findings of fact about medical care, education, family living conditions, etc.
How later courts described this case
- determining evidence supported the conclusion of a substantial change in circumstances based on findings of fact about medical care, education, family living conditions, etc.
- finding evidence to support a substantial change in circumstances based on findings of fact about medical care, education, family living conditions, etc.
Written by the judges who cited it.
The opinion
FULLER, Judge,
concurring.
I join in the majority opinion. However, I write separately for emphasis.
The trial court’s initial custody order, awarding custody to the father, was the result of a hearing at which neither the mother nor the child were present. The court did not appoint a guardian ad litem to represent the interests of the child. The only evidence received by the court was presented by the father. Although the custody order was not technically denominated a default judgment, it was, in effect, a result reached by default, since the court heard only one side of the dispute.
Even in suits involving competent adults, our jurisprudence disfavors default judgments, believing that justice is more likely to result from a full, fair adversarial proceeding. See, e.g., Estate of Teel v. Darby, 129 N.C. App. 604, 607 , 500 S.E.2d 759, 762 (1998) (“[Provisions relating to the setting aside of default judgments should be liberally construed so as to give litigants an opportunity to have a case disposed of on the merits.”). In some instances, where parties sit on their rights, we allow dollars or widgets to go by default. However, our courts should go the extra mile to insure that custody of our children does not go by default. See Qurneh v. Colie, 122 N.C. App. 553, 559 , 471 S.E.2d 433, 436 (1996) (“As a policy matter, issues such as custody should only be decided after careful consideration of all pertinent evidence in order to ensure the best interests of the child are protected.”).
One way to protect the child’s welfare is for the trial judge, as an exercise of discretion, pursuant to N.C.R. Civ. P. 17(b), to appoint a guardian ad litem to insure that a child’s interests are adequately investigated and presented to the court. See, e.g., Van Every v. McGuire, 125 N.C. App. 578 , 481 S.E.2d 377 (1997), aff'd, 348 N.C. 58 , 497 S.E.2d 689 (1998) (approving trial court’s decision to appoint guardian ad litem to represent minor child during custody proceeding). In short, to the extent possible, child custody determinations *696 should be based upon consideration of the best available evidence, and should not be based merely upon deemed admissions or one parent’s perspective.
In addition, when exigencies of schedulely make ex parte proceeding unavoidable, our case law has given the trial judge an additional tool to protect the child’s welfare in subsequent hearings. For this Court has clearly stated that it is permissible for a trial court to find a substantial change in circumstances based on any facts pertinent to the custody issue that were not disclosed to the court at the original custody hearing. See Newsome, 42 N.C. App. at 425-26, 256 S.E.2d at 854-55. This is surely true in cases where the original judgment was a default judgment, or, in cases such as this, where the original judgment was based on evidence presented by only one parent.
Regardless of the stage of the custody dispute, and taking into account necessary legal procedures, our ultimate concern is, and must be, the child’s best interest. Here, application of either the best interest of the child standard or the substantial change in circumstances standard would lead to the same conclusion. Accordingly, I vote with the majority that the child should be placed with the mother.