In Re Custody of Griffin

170 S.E.2d 84 (1969)

6 N.C. App. 375

In the Matter of the CUSTODY OF Tracy Marlene GRIFFIN.

No. 6911DC462.

Court of Appeals of North Carolina.

October 22, 1969.

*85 Hoyle & Hoyle, by J. W. Hoyle, Sanford, for petitioner appellant.

Pittman, Staton & Betts, by William W. Staton, and Ronald T. Penny, Sanford, for respondent appellees.

FRANK M. PARKER, Judge.

Appellant assigns as error the admission in evidence over her objection of 21 affidavits against her and the making of findings of fact on the sole basis of these affidavits. In particular she challenges findings of fact numbers five, six and ten as being unsupported by any evidence other than the affidavits and therefore as being unsupported by any competent evidence. The record on appeal discloses that at the hearing the appellant made timely objection when the affidavits were offered by the respondents, objecting both to the entire group of affidavits and to each of them singly. The record further discloses that she demanded the right to be allowed to cross-examine the affiants. Thus, this appeal presents squarely for decision the question whether in a child custody hearing affidavits may properly be received in evidence over timely objection of an interested party.

Although made under oath, an affidavit is inherently weak as a method of proof. It is prepared without notice and under circumstances which afford ample opportunity to lead the witness; it normally includes only matters deemed helpful by the party who prepares it, omitting all matters deemed detrimental; it may be entirely true as far as it goes, and yet constitute the misrepresentation of a half-truth because of matters omitted. The source and extent of the affiant's knowledge of the facts concerning which he swears are seldom adequately disclosed; any weakness in his memory or hesitancy to testify are not *86 revealed; his motives and bias are not uncovered; his demeanor while testifying cannot be known. Most important of all, the affiant's statements cannot be subjected to that searching light of cross-examination which provides the best instrumentality our experience has yet devised for assessing the true value of testimony. "Affidavits on the same side are sometimes as uniform in appearance as eggs in the shell; but, if one of them be prodded with the point of a cross-question or two, the yoke is at once exposed." Lumpkin, J., in Robertson v. Heath, 132 Ga. 310, 64 S.E. 73.

Despite their inherent weakness, use of affidavits has been considered proper in certain limited situations in which the weakness of this method of proof is deemed substantially outweighed by the necessity for expeditious procedure. 6 Wigmore, Evidence 3rd, §§ 1709, 1710. For example, in determining preliminary or interlocutory motions, in ruling on applications for alimony pendente lite, and in finding facts as a basis for issuing temporary restraining orders, use of affidavits has been considered proper. In all of these situations there is a compelling need for expeditious procedure. In most of them in the normal course of the litigation opportunity is subsequently afforded the opposing party to refute the affidavits or to cross-examine the affiants. However, we perceive in the normal circumstances which attend child custody proceedings no such compelling necessity for speedy action as warrants action based upon inferior evidence. If the circumstances of a particular case require, the court may enter an order for temporary custody, even pending service of process or notice, G.S. § 50-13.5(d) (1), and use of affidavits as a basis for finding necessary facts for such purpose may be appropriate. Awarding custody on a permanent basis is quite another matter. Such a determination always involves the welfare and future development of the child; it frequently involves the lives and happiness of other persons as well. While the order awarding custody is not final and may be subsequently modified, this may be done only upon a showing of changed circumstances. G.S. § 50-13.7(a); Stanback v. Stanback, 266 N.C. 72, 145 S.E.2d 332. Therefore, in the first instance the order should be entered only after the most careful consideration and only after the court has had the benefit of more reliable evidence than is usually afforded by affidavits. The question to be determined in child custody hearings is certainly as important as any presented in the usual contract or tort litigation. Affidavits are not, as a rule, admissible in the trial of contract and tort cases as independent evidence to establish facts material to the issues being tried, 3 Am.Jur.2d, Affidavits, § 29, p. 404, and we see no more justification for resort to inferior evidence in child custody proceedings than in such other litigations.

In the present case the appellant is the mother of the infant child whose custody she seeks. The father is dead. "Where one parent is dead, the surviving parent has a natural and legal right to the custody and control of their minor children. This right is not absolute, and it may be interfered with or denied but only for the most substantial and sufficient reasons, and is subject to judicial control only when the interests and welfare of the children clearly require it." James v. Pretlow, 242 N.C. 102, 104, 86 S.E.2d 759, 761. In the present case the trial judge has denied the mother's petition and awarded custody of her infant daughter to the paternal grandparents. The crucial finding of fact made by the court to support its decision is that the mother is unfit. The sole support for this finding in the record is contained in the affidavits. In admitting these affidavits in evidence over appellant's objection and in making its crucial finding of fact on the basis of these affidavits, there was error.

*87 We are advertent to the past practice in North Carolina of hearing child custody matters upon affidavit. However, we find no decision of our Supreme Court which sanctions this practice where, as here, timely objection has been made and the objecting party will be deprived of his right of cross-examination. In Re Hughes, 254 N.C. 434, 119 S.E.2d 189, held that a party to a child custody proceeding must object when affidavits are offered or ask permission to cross-examine, else his silence gives consent. By implication, if timely objection is made, affidavits should not be received, at least not without affording an opportunity for cross-examination. Gustafson v. Gustafson, 272 N.C. 452, 158 S.E.2d 619, was an action for alimony without divorce under G.S. § 50-16 as it existed prior to its repeal in 1967. Child custody was involved and the court approved the use of ex parte affidavits, but stressed that in that case "(t)he ultimate right of cross-examination will be afforded the parties at the trial of the cause, * * *." While not directly concerned with the question presented by the case now before us, our Supreme Court has held in a number of cases that time-tested methods for assuring an adequate and fair hearing must be applied in child custody proceedings. See, for example, Raper v. Berrier, 246 N.C. 193, 97 S.E.2d 782; In Re Gibbons, 245 N.C. 24, 95 S.E.2d 85; and In Re Custody of Gupton, 238 N.C. 303, 77 S.E.2d 716. Courts of other states have passed upon the exact question with which we are here concerned and have held affidavits inadmissible in child custody hearings if timely objection is made. Pavaroff v. Pavaroff (Cal.App.) 130 P.2d 212; Camp v. Camp, 213 Ga. 65, 97 S.E.2d 125; Cornelison v. Cornelison, 53 Idaho 266, 23 P.2d 252; Hays v. Hays, 219 Ky. 284, 292 S.W. 773; cf., cases cited in Annotation, 35 A.L.R.2d 629. We find the reasoning of those decisions persuasive.

For error in admitting the affidavits in evidence over the petitioner's objection, the case is remanded to the District Court of Lee County for rehearing.

Error and remanded.

CAMPBELL and GRAHAM, JJ., concur.