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 Orr
concurring in the result.
N.C.G.S. § 50-13.7(b) provides that “when an order for custody of a minor child has been entered by a court of another state, a court of this State may, upon gaining jurisdiction, and a showing of changed, circumstances, enter a new order for custody which modifies or supersedes such order for custody.” N.C.G.S. § 50-13.7(b) (1995) (emphasis added). The statutory language does not use the word “substantial” in describing change of circumstances nor does the statute use the phrase “affecting the child’s welfare.” Both “substantial” and “affecting the child’s welfare” have been added by judicial decisions and represent a commonsense interpretation of the legislative intent.
As I read the intent of the legislature in its passage of N.C.G.S. § 50-13.7(b), the trial court would first determine whether a change of circumstances had occurred since the entry of the original custody order and then determine whether the change of circumstances is *630 substantial and has some rational relationship to the polar star issue in all custody determinations, i.e., the welfare of the child. 2
In other words, the first factor to be considered in evaluating a change of circumstances is whether it is substantial. By this, we mean not inconsequential or minor but instead a change that is significant. Next, the trial court should evaluate whether the change “affects the welfare of the child.” By this, we mean that the changes are of the type which normally or usually affect a child’s well-being — not a change that either does not affect the child or only tangentially affects the child’s welfare.
It is unnecessary at this stage to determine the quantitative or qualitative degree of effect on a child’s welfare. As a practical matter, it may be difficult, if not impossible, to determine how a significant change of circumstances is currently or in the long-term going to affect a child’s welfare. Upon determining that the requirement of N.C.G.S. § 50-13.7(b) has been met, the trial court would then be required to consider modification of custody by applying the best interest of the child test.
Here, there is little, if any, dispute that the father’s acknowledgment that he is homosexual and that his companion and admitted lover’s moving into the home with the boys constitutes a substantial change of circumstances as envisioned by N.C.G.S. § 50-13.7(b). Obviously, conditions in the home are dramatically different from when the original custody order was entered. Once the trial court reaches the conclusion that there has been a substantial change of circumstances, it is not necessary, as the Court of Appeals believed, for the trial court to make findings as to adverse (or beneficial) effects, but only that the substantial change affects the welfare of the child. Here, there seems little room for argument that the new living arrangement and the father’s new lifestyle will have some effect on the boys and their well-being. It was erroneous to require a showing of harm to the children in reaching such a conclusion. Since there was evidence in the record from which the trial court could find that the change of circumstances was substantial and affected the boys’ welfare, the trial court then was required to reopen the custody issue and determine what was in the best interest of the boys.
*631 As to the ultimate disposition of this case, there is evidence in the record from which the trial court could find and ultimately conclude that it was in the best interest of the children to change custody. “[T]he trial judge’s findings of fact in custody Orders are binding on the appellate courts if supported by competent evidence." Blackley v. Blackley, 285 N.C. 358, 362 , 204 S.E.2d 678, 681 (1974).
In determining the best interest of the child, the trial court should consider a number of factors, too numerous to be named here. . . .
Whenever the trial court is determining the best interest of a child, any evidence which is competent and relevant to a showing of the best interest of that child must be heard and considered by the trial court, subject to the discretionary powers of the trial court to exclude cumulative testimony.
In re Shue, 311 N.C. 586, 597 , 319 S.E.2d 567, 574 (1984).
However, there is no burden of proof on either party on the “best interest” question. Although the parties have an obligation to provide the court with any pertinent evidence relating to the “best interest” question, the trial court has the ultimate responsibility of requiring production of any evidence that may be competent and relevant on the issue. The “best interest” question is thus more inquisitorial in nature than adversarial.
Ramirez-Barker, 107 N.C. App. at 78, 418 S.E.2d at 679 (citation omitted). In applying the best-interest test, the trial court is vested with broad discretion, and its decision cannot be overturned absent a showing of an abuse of discretion. In re Custody of Peal, 305 N.C. 640, 645-46 , 290 S.E.2d 664, 667 (1982). Here, despite conclusory aspects of the trial court’s order which were unnecessary, I cannot say that the trial court’s decision that it was in the best interest of these young boys to now live with their mother and stepfather was an abuse of discretion.
I acknowledge that our case law has emphasized the importance of stability in custody cases and that continual reopening of the issue is harmful to the child. However, I am convinced that the test articulated in this concurring opinion does not substantially create a problem, and, if so, it must be balanced against the Court’s ultimate responsibility to do what is in the child’s best interest. Shepherd v. Shepherd, 273 N.C. 71, 75 , 159 S.E.2d 357, 361 (1968). The party moving for modification of the original custody order must demonstrate *632 that a substantial change in circumstances has occurred that affects the child’s welfare. Obviously, this burden is necessary to promote stability in custody orders and discourage frequent petitions for modification of custody decrees. I believe this test will still serve to protect the custodial parent from harassment by repeated litigation and protect the child from being in the midst of ongoing custody battles.
As Justice Ervin said almost fifty years ago: “It may be well to observe, in closing, that the law is realistic and takes cognizance of the ever changing conditions of fortune and society. While a decree making a judicial award of the custody of a child determines the present rights of the parties to the contest, it is not permanent in its nature, and may be modified by the court in the future as subsequent events and the welfare of the child may require.” Hardee v. Mitchell, 230 N.C. 40, 42 , 51 S.E.2d 884, 885-86 (1949).
.1 would disavow the test first set forth in Rothman v. Rothman, 6 N.C. App. 401, 406 , 170 S.E.2d 140, 144 (1969), and followed in Ramirez-Barker v. Barker, 107 N.C. App. 71, 77 , 418 S.E.2d 675, 678-79 (1992), that “[i]n order for a change in circumstances to be substantial, ‘[i]t must be shown that circumstances have so changed that the welfare of the child will be adversely affected unless the custody provision is modified.’ ”