subject: North Carolina Absolute Divorce Counterclaim Custody Temporary Order Lawyers Attorneys [print this page] MICHAEL K. GRIFFIN v. MARIE S. GRIFFIN
COURT OF APPEALS OF NORTH CAROLINA
June 5, 1986, Heard in the Court of Appeals
July 1, 1986, Filed
Plaintiff husband filed a complaint on 7 February 1985 requesting absolute divorce from defendant and custody of the two minor children. Defendant answered and counterclaimed for custody of the children, child support and equitable distribution. Judgment of absolute divorce was entered on 20 June 1985. The matter of custody was set for hearing on 14 August 1985. On 5 August 1985 plaintiff obtained an ex parte temporary custody order awarding him custody of the children for a week pending the hearing. Defendant filed a motion to quash the order, but no ruling was entered. After the trial court heard evidence on the matter of custody, it granted joint legal custody to the parties with primary custody granted to plaintiff husband. Defendant appealed.
Issues:
Whether the trial court abused its discretion in entering an order which failed to give sufficient weight to the testimony of the children in light of their ages?
Whether the court erred in failing to make a positive determination of when and how the children can make a choice as to their custodial parents?
Whether the trial court abused its discretion in awarding custody to plaintiff?
1) Whether the trial court abused its discretion in entering an order which failed to give sufficient weight to the testimony of the children in light of their ages
The Court finds that the trial court has broad discretion in matters of child custody. Another accepted principle is that the wishes of a child of sufficient age to exercise discretion in choosing a custodian are entitled to considerable weight when the contest is between the parents, but these wishes are not controlling. The court expressed its opinion that, with attempts by both parties to manipulate the children, the validity of the children's feelings as expressed to the court was questionable. The trial court clearly considered the wishes of the children and we find no abuse of discretion in its decision to grant primary custody to the father.
2) Whether the court erred in failing to make a positive determination of when and how the children can make a choice as to their custodial parents?
The trial court here is merely expressing its hope for a more stable and peaceful future for the children and clearly is not promising that, at some definite future date before majority, the children will be allowed to choose their custodians. Such a change of custody would have to be made pursuant to a new motion in the cause and in consideration of changed circumstances. When there is no objective measurement of how circumstances will change, a finding of changed circumstances can only be made by examining the evidence contemporaneously with the new motion in the cause. This assignment is overruled.
3) Whether the trial court abused its discretion in awarding custody to plaintiff
The Court held that the trial court did not abuse its discretion. Both of the parties were judged to be fit parents. The trial court determined, however, that it was best for Brian to remain with his father in North Carolina where the father had established an effective child care plan for his son in an environment that Brian was accustomed to and in which he had spent most of his life. There was no abuse of discretion by the trial court.
Conclusion:
Hence this Court affirmed the trial court's judgment, which awarded custody of the couple's child to the father and which denied to afford full faith and credit to the mother's Michigan custody decree.
Disclaimer:
These summaries are provided by the SRIS Law Group. They represent the firm's unofficial views of the Justices' opinions. The original opinions should be consulted for their authoritative content
North Carolina Absolute Divorce Counterclaim Custody Temporary Order Lawyers Attorneys
By: Atchuthan Sriskandarajah
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