Leigh v. Aiken

• Decision Date: 16 April 1975
• Citation: 54 Ala.App. 620,311 So.2d 444
• Parties: Mary Louise Aiken LEIGH v. Samuel David AIKEN. Civ. 468.
• Court: Alabama Court of Civil Appeals

Page 444

311 So.2d 444

54 Ala.App. 620

Mary Louise Aiken LEIGH v. Samuel David AIKEN.

Civ. 468.

Court of Civil Appeals of Alabama.

April 16, 1975.

Hare & Hare, Monroeville, for appellant.

No brief for appellee.

Richard L. North, St. Louis, Mo., for amicus curiae, National Juvenile Law Center.

Dawson & McGinty, Scottsboro, amicus curiae, in support of the minor child.

WRIGHT, Presiding Judge.

This is an appeal from a decree denying modification of a prior decree granting custody of a child.

The history of the case up to this appeal is as follows: The appellant, mother of the child, and appellee, father of the child, were divorced for incompatibility on August 16, 1973. Incorporated in the decree was an agreement of the parties as to division of property, custody and support of three children. The two older children were young men of the ages of 21 and 20. The youngest child was Jamie, age 12. By agreement his custody was granted to the mother with visitation rights to the father. It was further agreed that the father would pay $75.00 per month as support for Jamie.

On March 11, 1974, apparently in response to petition for citation for contempt filed by both parties, the court entered a decree requiring fulfillment by each party of the obligations set out in the separation agreement. This decree amplified the custody provisions of the agreement by setting out specific days and times for the exercise of visitation rights of the father with Jamie.

On July 16, 1974, another decree was entered implementing and enforcing the agreement and provisions of the prior decrees. The court further stated in the decree that if further proceedings were filed in the case by either party, the case would be transferred from Tuscaloosa County to Monroe County, where the parties resided.

On the 8th day of August, 1974, the expected occurred. The mother filed a new petition charging that the privileges of visitation given the father by the prior decree were detrimental to Jamie; that Jamie was afraid of his father and did not wish to visit with him; that forcible visitation was causing Jamie to be highly nervous and mentally ill. Temporary order of suspension of visitation privileges was requested pending hearing. The Tuscaloosa Court directed the case to be transferred to Monroe County.

On August 10, 1974, the Monroe County Circuit Court entered a temporary restraining order enjoining the father from exercising visitation privileges pending a hearing on August 14. The father answered the petition and filed a cross petition charging interference with rights of visitation and undue influence on Jamie by the mother prejudicing him against his father.

The matter came on to heard orally by the court on the 14th and 16th of August. Extensive testimony was presented by each party. The court, after insistent requests by both counsel, talked with Jamie in camera. Decree was entered on August 16th denying each petition, dissolving the temporary order and directing compliance with the decree of March 11, 1974 as to custody and visitation.

The mother appeals assigning two basic errors. The first charges error in refusal of the court to permit Jamie to be presented by her as a witness in open court. The second error charged is that of failure by the court to appoint a guardian ad litem to represent Jamie in the case. In support of the assigned errors, counsel for appellant has submitted a brief. Upon request, the court permitted two amicus curiae briefs to be filed. Such amicus curiae are prefaced as being filed on behalf of the minor child. We have not accepted them in such posture, as the child, Jamie, is not a party to the action, though he may be said to have an interest therein. We have accepted such briefs as supporting the contention of appellant, stated in her brief.

As to the first assignment of error, the record is not clear as to what occurred in the trial court. At the beginning of the hearing counsel for the father moved that Jamie be examined in chambers. The court responded by stating he did not know at that time whether he would allow such examination because he was concerned about putting the child between the parents. Counsel for appellant stated that he agreed with the court's position. At the conclusion of the hearing, counsel for appellant requested that Jamie be allowed to testify. It is not clear whether such request was for in camera examination or in court with cross-examination. The judge again responded to the request by stating that he was not going to permit examination in open court. He said that he might talk to Jamie in his chambers, but he had not decided. The judge then asked if counsel wished to argue the matter or if they wanted him to talk to Jamie or did they want to argue the case and submit it. The only response was that counsel for appellant stated that he wished to call a rebuttal witness.

Subsequently, the court did talk with Jamie in chambers and apparently received from him an expression of desire in the matter. It is thus unclear from the record what the court was requested to do that it did not do.

The premise of appellant in argument is that a minor child of sufficient age should be permitted to testify on any material issue and particularly on his desires and preferences in a matter involving his custody, and that such testimony should be taken in open court subject to cross-examination. Appellant founds such premise on constitutional grounds and in particular the due process clause of the Fourteenth Amendment of the United States Constitution.

We do not perceive that due process rights of a child are involved in a proceeding to determine custody. The institution. of any proceeding invoking the equity jurisdiction of the court as to an infant, immediately causes such infant to become a ward of the court under the common law principle of parens patriae. Ayers v. Kelley, 284 Ala. 321, 224 So.2d 673; Wise v. Watson, 286 Ala. 22, 236 So.2d 681. The question of its custody comes under the control of the court in the exercise of its broad judicial discretion. Such discretion is not unlimited or arbitrary but is subject to the rule of determination of what is to the best interest and welfare of the child. Anonymous v. Anonymous, 277 Ala. 634, 173 So.2d 797.

It has been said by the Supreme Court of this state that in a custody proceeding the court 'does not proceed upon the theory that the petitioner, whether father or mother, has a cause of action against the other, or indeed against anyone. He acts as parens patriae to do what is best for the interest of the child. He is not adjudicating a controversy between adversary parties, to compose their private differences. He is not determining rights as between a parent and child, or as between one parent and another.' Cleckley v. Cleckley, 250 Ala. 78, 33 So.2d 338; Ex parte White, 245 Ala. 212, 16 So.2d 500. Any matter affecting the rights, interests or welfare of the ward is within the peculiar jurisdiction and discretion of the court. Stephens v. Stephens, 253 Ala. 315, 45 So.2d 153. Protection of the child from the emotional experience of expressing a preference as between one parent or another in open court in their presence and being subjected to cross-examination is within the discretion of the court.

In arguing the error of the refusal of the court to permit the calling of the child as a witness, appellant goes in two divergent directions. She first contends denial of due process to Jamie because his examination and cross-examination in open court was not permitted. In the same argument, she submits that her rights were violated in that she could not call Jamie as her witness. We must ask whose welfare is she concerned with? In this instance Jamie was heard by the court. There is no indication in the record that he was not given full opportunity to present his views, desires and information known to him to the court. We make this statement not to convey that we decide here that due process required the court to examine the child. We do not so hold. We hold only that under the facts of this case there was no denial to Jamie of the opportunity to be heard.

We further hold that in pursuance of its duty of protecting the welfare of the child, the court under the facts presented, did not withhold from appellant any constitutional nor statutory right by refusing to allow her to present Jamie as her witness and subject him to direct and cross-examination in open court.

The second assignment of error is that the court erred in failing to appoint a guardian ad litem for the child. Argument in support of the assignment contends a constitutional question of due process. We have examined the record and fail to find any such proposition submitted to the trial court. There is no request by either side for the appointment of a guardian ad litem. We find no citation, either in appellant's brief or those submitted amicus curiae, holding that failure or refusal to appoint a guardian ad litem to represent the interest of minors in child custody cases in equity is a violation of the due process clause of the Fourteenth Amendment. We have been cited to numerous law review articles expressing the views of the authors as to the need for representation of the interest of children by counsel or guardian and litem in custody cases. ¹ Some of such articles present the view that due process requires such representation. The latter articles are post In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967). There is also presented the view of the Wisconsin Supreme Court expressed in several cases and in a procedural rule adopted under the rule-making power of the court in 1971. ² The effect of the cited cases and the rule is that protection of the best interest of the child may, in some cases, require the assistance of a guardian ad litem for the child. As we understand the import of the decisions and the rule, the purpose is to assist the...