In re Custody of Edwards, 25 N.C. App. 608

25 N.C. App. 608 | N.C. Ct. App. | 1975

HEDRICK, Judge.

Although petitioner gave notice of 'appeal, he neither served on the respondent nor filed in this court a record on appeal, nor did he file a brief either as appellant or as appellee. Petitioner’s appeal is dismissed.

Respondent assigns as error that there is not sufficient evidence to support the findings and conclusions of the trial judge that respondent is presently unable to fulfill the physical, emotional, spiritual, and educational needs of her son and that the best interests of the child will be served by awarding his primary custody to Louise Edwards. She argues that the only evidence supporting the court’s conclusion is that she committed adultery in 1970 and 1971. She cites Pendergraft v. Pendergraft, 23 N.C. App. 307, 208 S.E. 2d 887 (1974), and Savage v. Savage, 15 N.C. App. 123, 189 S.E. 2d 545 (1972), for the proposition that a parent does not become unfit to have custody of a child merely because he or she commits adultery.

It is true that under Pendergraft, supra, and Savage, supra, the district court is not required to deny a parent custody of a child whenever it finds that the parent has had an adulterous affair. However, the additional findings of the court with respect to the respondent’s conduct up to and including the date of the hearing, including the findings with respect to her relation with her business partner, support the conclusion that:the respondent is not presently able to fulfill the physical, emotional, spiritual, and educational needs of her son. A more critical conclusion, however, is that the best interests of the child will be served if his primary custody is awarded to the grandmother, Louise Edwards. The record is replete with evidence and findings that support this conclusion. It seems from the record that for all practical purposes the child has been in' Louise Edwards’s custody since the respondent returned from her trip to California with Bobby Elam. Indeed, it appears from the record that Louise Edwards at least shared custody of the child with the petitioner and the respondent all his life. Moreover, the record is replete with evidence and findings -that Louise Edwards is a fit and proper person to have primary custody of the child. We think the trial judge exercised sound judicial- discretion in resolving the matter by. awarding the primary custody of the child to his grandmother, who has demonstrated not' only her'will-ingless but her ability to provide a good home for the child.

While the court, upon proper findings and conclusions, can award the custody of a minor child to any person, agency, or institution as will best promote the interest and welfare of the child, G.S. 50-13.2(a), under the circumstances of this case, where the court awarded custody of the child to Louise Edwards who is not a party to the proceeding, we think the proceeding should be remanded with directions that the trial court issue the necessary notices and orders to make Louise Edwards a party to this action to the end that the court has effective jurisdiction over her person. Tucker v. Tucker, 24 N.C. App. 649, 211 S.E. 2d 825 (1975).

The result is: petitioner’s appeal is dismissed; as to respondent’s appeal, the order of the trial court is affirmed and the proceeding is remanded to the district court with directions.

Affirmed and remanded with directions.

Judges Parker and Clark concur.