holding that the court "must consider and weigh all evidence of changed circumstances which affect or will affect the best interests of the child, both changed circumstances which will have salutary effects upon the child and those which will have adverse effects upon the child." (emphasis added)
How later courts described this case
- holding that the court "must consider and weigh all evidence of changed circumstances which affect or will affect the best interests of the child, both changed circumstances which will have salutary effects upon the child and those which will have adverse effects upon the child." (emphasis added)
- holding that a district court may order modification of an existing child custody order between two biological parents if the moving party shows a “ ‘substantial change of circumstances affecting the welfare of the child’ ” which warrants a change in custody
- noting that, in cases in which the trial court sits as the trier of fact, its “findings of fact have the force and effect of a verdict by a jury and are conclusive on appeal if there is evidence to support them, even though the evidence might sustain findings to the contrary” (quoting Williams v. Pilot Life Ins. Co., 288 N.C. 338, 342 , 218 S.E.2d 368, 371 (1975))
- finding that open nature of father's homosexuality, which included hand-holding and kissing lover in presence of children, likely to create emotional difficulties for children
Written by the judges who cited it.
The opinion
Justice Webb
dissenting.
I dissent. I do not believe the evidence supports a finding that there had been a substantial change in circumstances affecting the welfare of the children so that the custody could be changed.
The majority begins its opinion by saying this Court has never required a party seeking a change in custody to show there has been a change in circumstances adversely affecting the child. The majority then overrules Thomas v. Thomas, 259 N.C. 461 , 130 S.E.2d 871 (1963), and eighteen Court of Appeals cases which hold otherwise. We may want to change the law as to the showing necessary to change custody, but if we do so I suggest we do it forthrightly. I note that in this case the majority relies on a change in circumstances which adversely affects the children to affirm the change in custody.-
The majority relies first on findings of fact 49 and 54 to hold that the district court found facts sufficient to justify a change in custody. In these two findings, the district court found only that the defendant is a practicing homosexual and this creates an unfit and improper environment for the children. I do not believe the fact, standing alone, that defendant is a practicing homosexual, is sufficient to support a conclusion that this shows an improper environment which justifies a change in custody.
The majority also relies on finding of fact 53, in which the district court speculated on the possibility that their father’s homosexuality *629 will likely create emotional difficulties for the two children. The only evidence that the children actually suffered emotional difficulties was testimony that the older child, when he was told his father was homosexual, cried and asked his mother to remove him from his father’s home. This child said at the hearing that he had no preference as to which of the parties was given custody. All the evidence showed the children were well adjusted. They had good attendance records in school and maintained average to above average grades. There was not substantial evidence to support a finding of fact that the defendant’s homosexuality will likely create emotional difficulties for the two children.
The difficulty with the majority opinion for me is that it recites actions by the defendant which the majority considers to be distasteful, immoral, or even illegal and says this evidence supports findings of fact which allow a change in custody. There is virtually no showing that these acts by the defendant have adversely affected the two children. The test should be how the action affects the children and not whether we approve of it. I believe the evidence shows only that the defendant is a practicing homosexual without showing any harm has been inflicted on the children by this practice. I do not believe we should allow a change in custody on evidence which shows only that the defendant is a practicing homosexual.