Gwaltney, Matter of, 833DC341
| Decision Date | 05 June 1984 |
| Docket Number | No. 833DC341,833DC341 |
| Citation | 68 N.C.App. 686,315 S.E.2d 750 |
| Court | North Carolina Court of Appeals |
| Parties | In the Matter of Debra Ann GWALTNEY Lisa Anette Gwaltney. |
Kent G. Flowers, Jr., New Bern, for petitioner-appellee Craven County Dept. of Social Services.
Sumrell, Sugg & Carmichael by Rudolph A. Ashton, III, New Bern, for respondent-appellant Marie Anette Gwaltney.
Respondent argues that the court erred in awarding custody to the Department because there were no findings of fact supporting the allegations against her as set out in the petition and no finding of fact that she was an unfit mother. She argues that the findings of fact were insufficient to rebut her "constitutional right to the natural and legal custody of her minor children."
The primary concern of the trial court in a custody matter, as mandated by G.S. 50-13.2(a), is the welfare of the child, and this concern outweighs the presumption favoring the award of custody to a natural parent. In re Kowalzek, 37 N.C.App. 364, 246 S.E.2d 45, disc. rev. denied and appeal dismissed, 295 N.C. 734, 248 S.E.2d 863 (1978). This Court in Kowalzek stated:
It is entirely possible that a natural parent may be a fit and proper person to care for the child but that all other circumstances dictate that the best interests of the child would be served by placing custody in a third party. Thus, we hold that the trial judge is not required to find a natural parent unfit for custody as a prerequisite to awarding custody to a third person. (Citation omitted.)
Id. at 368, 246 S.E.2d at 47. The findings of fact in the order now before us support the conclusions of law that the children were abused and neglected and that the best interests of the children would be served if custody was awarded to the Department.
An abused juvenile is one whose parent:
c. Commits or allows the commission of any sexual act upon a juvenile in violation of law; ... or
d. Creates or allows to be created serious emotional damage to the juvenile and refuses to permit, provide for, or participate in treatment. Serious emotional damage is evidenced by a juvenile's severe anxiety, depression, withdrawal or aggressive behavior toward himself or others....
G.S. 7A-517(1). A neglected juvenile is one "who does not receive proper care, supervision, or discipline from his parent ...; or who lives in an environment injurious to his welfare...." G.S. 7A-517(21).
As the findings of fact indicate, all parties admitted the allegations in Part I of the juvenile petition. These allegations were that the respondent-father had repeatedly sexually abused his two daughters; and that as a result the children suffered serious emotional damage evidenced by withdrawals, aggressive behavior, guilt and anxiety. Another admitted allegation under Part I of the petition was that Debra "has attempted suicide as a direct result of the behavior of the father responde...
To continue reading
Request your trial
-
Best v. Best
...of the trial court in awarding custody is not the rights of the parent(s), but the best interest of the child. In re Gwaltney, 68 N.C.App. 686, 315 S.E.2d 750 (1984). We note that it is not necessary for the natural parent to be found unfit for the presumption to be overcome. Comer v. Comer......
-
Black v. Glawson, 9229DC1307
...N.C.G.S. § 50-13.2(a), which was enacted in 1967, to have modified the common law in this regard, see, e.g., In re Gwaltney, 68 N.C.App. 686, 315 S.E.2d 750 (1984); Campbell v. Campbell, 63 N.C.App. 113, 304 S.E.2d 262, disc. review denied, 309 N.C. 460, 307 S.E.2d 362 (1983); In re Kowalze......
-
Seyboth v. Seyboth
...Adams v. Tessener, 354 N.C. 57, 550 S.E.2d 499 (2001); Brewer v. Brewer, 139 N.C.App. 222, 533 S.E.2d 541 (2000); In re Gwaltney, 68 N.C.App. 686, 315 S.E.2d 750 (1984). The seminal case in our state regarding custody and visitation rights of parents versus nonparents is Petersen v. Rogers,......
- Citibank, N.A. v. Michaux