Woodruff v. Woodruff

260 S.E.2d 775 (1979)

44 N.C. App. 350

Sammy Warren WOODRUFF v. Janet Wallace WOODRUFF.

No. 7921DC456.

Court of Appeals of North Carolina.

December 18, 1979.

*776 Schramm & Frenck by John J. Schramm, Jr., Winston-Salem, for plaintiff-appellee.

White & Crumpler by Fred G. Crumpler, Jr. and V. Edward Jennings, Jr., Winston-Salem, for defendant-appellant.

ERWIN, Judge.

Did the trial court commit error in granting a father who is homosexual unsupervised overnight visitation rights with his minor son? On the record before us, we answer, "No."

Courts are generally reluctant to deny all visitation rights to parents of a child of tender age, but it is generally agreed that visitation rights should not be permitted to jeopardize a child's welfare. Swicegood v. Swicegood, 270 N.C. 278, 154 S.E.2d 324 (1967). Annot., 88 A.L.R.2d 148 (1963). While the welfare of a child is always to be treated as the paramount consideration, the courts recognize that the wide discretionary power is necessarily vested in the trial courts in reaching decisions in particular cases. Griffin v. Griffin, 237 N.C. 404, 75 S.E.2d 133 (1953).

The court found facts as follows:

"[t]hat the plaintiff admitted having homosexual tendencies and experienced a feeling of love for a male person named Don Hall. That Don Hall, on occasions, visited with plaintiff in their home during a period when plaintiff was unemployed and the defendant was at work. On one of these occasions, when the child was present, Don Hall visited with the plaintiff during an afternoon when the doors were locked and the window shades drawn. On another occasion, plaintiff and Don Hall, in the company of the minor child, went for a walk alone, in a park near Yadkin River. Subsequently, plaintiff and defendant were separated as were Don Hall and his wife, and plaintiff and Don Hall moved into an apartment where they lived together for some period of time. * * * * * * Dr. Compere further stated that in his professional, expert opinion, there is no known cause of male homosexuality. He further testified that there is, however, a substantiated theory that a male child, raised by an extremely domineering mother, may pursue a homosexual lifestyle [sic]. Dr. Compere further stated that, in his professional expert opinion, the son of a homosexual father will not inherit that homosexuality. The doctor further testified that in his professional expert opinion, a severance of the father-son relationship in this case would be detrimental to the child's *777 wellbeing [sic] and that maintenance of the father-son relationship would be beneficial and in the child's best interest. DEFENDANT'S EXCEPTION NO. 7 The Court further finds that there is no evidence that the minor child has ever been physically abused by the plaintiff; nor is there evidence that the plaintiff ever demonstrated any affection for other men in the presence of the minor child."

The evidence presented supports the court's findings of fact, and the conclusions of law entered by the court were proper. The primary custody of the child was placed with the defendant-mother. The court further ordered: "It is further ordered that the plaintiff shall not cause the minor child to be in the presence of his boyfriends, and shall not have boyfriends visit him in his home when he is with the child."

We concede that the trial court was faced with a very serious and difficult problem in this case. We note the order entered is not permanent in nature and may be changed from time to time if circumstances and conditions then and there existing warrant change in the visitation rights awarded. We do not find any evidence from the record that would lead us to reverse this case.

Judgment affirmed.

CLARK and ARNOLD, JJ., concur.