Hughes, In re

• Decision Date: 12 April 1961
• Docket Number: No. 307,307
• Citation: 119 S.E.2d 189,254 N.C. 434
• Parties: In re Custody of Michael Randolph HUGHES and Richard James Hughes, Minors.
• Court: North Carolina Supreme Court

Page 189

119 S.E.2d 189

254 N.C. 434

In re Custody of Michael Randolph HUGHES and Richard James

Hughes, Minors.

No. 307

Supreme Court of North Carolina.

April 12, 1961

Joseph Corey, Colorado Springs, Colo., and Fouts & Watson, Burnsville, for respondent-appellant.

Bill Atkins and Anglin & Bailey, Burnsville, for petitioner-appellee.

RODMAN, Justice.

Appellant's challenge to the facts found by Judge Huskins is based on her assertion that there was no competent evidence to support the findings, because all of the evidence offered by petitioner was by affidavit, thereby depriving her of her constitutional right to cross-examine the witnesses for petitioner. If appellant wished to cross-examine the witnesses, she should have objected when the affidavits were offered or asked permission to cross-examine. She did neither. Her silence gave assent to the manner in which the evidence was presented. She cannot now complain with respect to a method of trial approved by her. Harriet Cotton Mills v. Local Union No. 578, 251 N.C. 218, 111 S.E.2d 457.

The other assignments are directed to the power of the Superior Court of North Carolina to determine the right to custody of children living in the county where the court was sitting. Appellant contends the District Court of Colorado had jurisdiction of the children then living in North Carolina, because it had jurisdiction of the parents; and because of such jurisdiction of the parents, findings made by that court were entitled to full faith and credit, foreclosing North Carolina's courts of the right to inquire as to the welfare of the infants.

It may be conceded that the parties before the Colorado court are bound by the findings then made, but Judge Huskins was not investigating the rights of the parents inter se. He was investigating facts necessary to provide for the welfare of the children. They were before him and admittedly had been in North Carolina for more than a year before any court was called upon to pass on the question of custody.

Each parent has a duty to care for his or her minor child. When the failure is wilful, the neglect is criminal. G.S. § 14-322. Because the law presumes parents will perform their obligations to their children, it presumes their prior right to custody, but this is not an absolute right. The welfare of the child is the crucial test. When a parent neglects the welfare and interest of his child, he waives his usual right of custody. Cleeland v. Cleeland, 249 N.C. 16, 105 S.E.2d 114; In re Mc-Whirter, 248 N.C. 324, 103 S.E.2d 293; Griffith v. Griffith, 240 N.C. 271, 81 S.E.2d 918; Story v. Story, 221 N.C. 114, 19 S.E.2d 136. As said by Parker, J., in In re Gibbons, 247 N.C. 273, 101 S.E.2d 16, 20: 'It is an entire mistake to suppose the court is at all events bound to deliver over a child to his father, or that the latter has an absolute vested right in the child. Doubtless, parents have a strict legal right to have the custody of their infant children as against strangers. However, courts will not regard this parental legal right against strangers as controlling, when circumstances connected with the present and prospective welfare of the child clearly exist to overcome it, or when to enforce such legal right will imperil the personal safety, morals, or health of the child.'

Because the welfare of the child is the crucial test, a court within whose jurisdiction a child is living has the right and duty, upon request of the person having custody of...