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Keywords

plaintiffdefendantappealhearingtrialtestimonyaffidavitchild custodyalimony
plaintiffdefendantappealhearingtestimonycompliancechild custodyalimony

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Kearns v. Kearns, 6 N.C.App. 319, 170 S.E.2d 132

Facts

The plaintiff filed for alimony pendente lite, child custody, counsel fees, and possession of certain properties after separating from the defendant on February 14, 1969. They had been married since June 26, 1955, and had four children together. The court heard testimony and received affidavits from both parties, but the defendant's requests to hear the children's testimony were denied. The court ultimately found both parents fit for custody but awarded custody of the two older children to the defendant and the two younger children to the plaintiff, along with various financial obligations placed on the defendant.

Plaintiff filed suit on 21 February 1969 for alimony pendente lite, child custody, counsel fees and possession of certain properties.

Issue

Did the trial court err in refusing to hear the testimony of the minor children regarding their custody?

Counsel for defendant twice requested the court to hear the testimony of the children and the court refused both times. This was error.

Rule

A child has the right to have their testimony heard in custody proceedings, and the trial judge must consider the child's wishes and feelings in making custody determinations.

The case of Spears v. Snell, 74 N.C. 210 (1876) established the right for a child to have his testimony heard.

Analysis

The court applied the established rule that children have a right to have their testimony considered in custody cases. It noted that the trial court's refusal to hear the children's wishes was a significant error, as the children's feelings and preferences are crucial in determining their best interests in custody arrangements.

These two cases leave no doubt that a child has a right to have his testimony heard.

Conclusion

The Court of Appeals concluded that the trial court's refusal to hear the children's testimony constituted an error, and therefore, the case was remanded for rehearing.

For the reasons herein stated the case is remanded for rehearing in compliance with this opinion.

Who won?

The plaintiff prevailed in the appeal as the court found in her favor regarding the error of not allowing the children's testimony.

The Court of Appeals found that the refusal to hear the children's testimony was indeed an error and remanded the case for rehearing.

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