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Child Support, Custody, and Visitation-_custody--tender years presumption
The trial court erred in a child custody case by two of its findings of fact, including the
court's personal notice of the natural bond that develops between infants and a mother especially
when a mother breastfeeds and the fact that the court finds that the placement with defendant
father would be a negative aspect based on the very nature of the age and gender of the minor
child (28-month-old female), and the case is remanded for a determination based on the best
interests of the child standard, because: (1) the trial court's beliefs cannot be distinguished from
the tender years presumption that was abolished in 1977 by an amendment to N.C.G.S. § 50-
13.2(a), and it cannot be resurrected under the guise of the court taking judicial notice of the
assumptions underlying the doctrine; (2) the trial court did not view the father as equal to the
mother and did not evaluate the evidence independent of any presumptions in favor of the
mother; and (3) the record did not reflect specific evidence of findings as to the closeness of the
minor child and her mother or a particular bond that existed between the two, but instead the trial
court relied on personal experience.
William C. Coley III for plaintiff-appellee.
Dal F. Wooten for defendant-appellant.
Edward Allen Greer II, the defendant father, appeals from an order providing for joint legal custody and split physical custody of his daughter with plaintiff Joanne Grady Greer. A review of the trial court's findings of fact reveals that a substantial factor in the court's decision was the court's "personal notice of the natural bond that develops between infants and a mother, especially when the mother breast-feeds the infant" and the fact "[t]he Courtbelieves and finds that by the very nature of the age and gender of the minor child (28-month-old female), as it relates to the Defendant, that placement with the Defendant would be a negative aspect in the weighing of the positives and negatives."
These beliefs cannot be distinguished from the "tender years presumption" that was abolished in 1977 by an amendment to N.C. Gen. Stat. § 50-13.2(a) (2003). It has been the law for 30 years that a court may not base a custody decision, as between parents, on any presumption in favor of either the mother or the father, but instead must focus only on the best interests of the child as determined from the actual evidence before the court. We reverse and remand so that the trial court may make a "best interests" determination based on the evidence presented at trial.
Spence v. Durham, 283 N.C. 671, 687, 198 S.E.2d 537, 547 (1973)
(quoting 2 Nelson, Divorce and Annulment § 15.09, at 226-29 (2d ed.
1961)), cert. denied, 415 U.S. 918, 39 L. Ed. 2d 473, 94 S. Ct.
1417 (1974). See also In re King, 11 N.C. App. 418, 419, 181
S.E.2d 221, 221 (1971) (affirming award of custody to mother in
part because given "the tender age of said child, the welfare of
the child, . . . , would best be served by placing him in the
temporary custody of his mother").
As, however, recognized by this Court in 1994, "[t]his 'tender years' doctrine is no longer the law in North Carolina." Westneat v. Westneat, 113 N.C. App. 247, 251, 437 S.E.2d 899, 901 (1994). In 1977, the General Assembly amended N.C. Gen. Stat. § 50-13.2 to eliminate any presumption in favor of either the mother or the father so that only a best interests of the child test would be applied. The statute now states in pertinent part: An order for custody of a minor child entered pursuant to this section shall award the custody of such child to such person, agency, organization or institution as will best promote the interest and welfare of the child. In making the determination, the court shall consider all relevant factors including acts of domestic violence between the parties, the safety of the child, and the safety of either party from domestic violence by the other party and shall make findings accordingly. An order for custody must include findings of fact which support the determination of what is in the best interest of the child. Between the mother and father, whether natural or adoptive, no presumption shall apply as to who will better promote the interest and welfare of the child. Joint custody to the parents shall be considered upon the request of either parent.
N.C. Gen. Stat. § 50-13.2(a) (emphasis added). See also Reynolds, supra § 13.6b(c), at 13-32 ("Out of fear that the tender years presumption would remain the standard in practice, in 1977, the General Assembly underscored that the court was not to presume that either mother or father was the better custodian.").
Our Supreme Court has, relatively recently, re-emphasized that trial courts must decide custody as between the parents based solely on the best interests of the child, which is to be determined from the actual facts without reference to any presumptions. In Rosero v. Blake, 357 N.C. 193, 581 S.E.2d 41 (2003), cert. denied, 540 U.S. 1177, 158 L. Ed. 2d 78, 124 S. Ct. 1407 (2004), the trial court had awarded custody to the father of an illegitimate child after applying the best interests test. The Court of Appeals reversed, holding that the presumption in favor of the mother survived the enactment of N.C. Gen. Stat. § 50-13.2(a) when the child at issue was illegitimate. Rosero v. Blake, 150N.C. App. 250, 260, 563 S.E.2d 248, 256 (2002), rev'd, 357 N.C. 193, 581 S.E.2d 41 (2003). The Supreme Court, however, reversed yet again, holding that the statute abrogated the common law presumption in favor of the mother both as to legitimate and as to illegitimate children. Rosero, 357 N.C. at 207, 581 S.E.2d at 49. Instead, "the best interest of the child, illegitimate or legitimate, not the relationship, or lack thereof, between natural or adoptive parents, is the district court's paramount concern. For, as between natural or adoptive parents, '[t]he welfare of the child has always been the polar star which guides the courts in awarding custody.'" Id. at 207, 581 S.E.2d at 49-50 (quoting Pulliam v. Smith, 348 N.C. 616, 619, 501 S.E.2d 898, 899 (1998)). The Court emphasized:
[T]he father's right to custody of his illegitimate child is legally equal to that of the child's mother, and, as dictated by section 50-13.2, if the best interest of the child is served by placing the child in the father's custody, he is to be awarded custody of that child.
Id. at 208, 581 S.E.2d at 50.
In this case, however, the trial court did not view the father as equal to the mother and did not evaluate the evidence independent of any presumptions in favor of the mother. Instead, the trial court used language in the order that cannot be distinguished from the abolished presumption and that is eerily reminiscent of language used in early cases applying the presumption such as Spence. The court in Spence held that "the mother is the natural custodian of her young" and "other thingsbeing equal, the mother should be given their custody, in order that the children may not only receive her attention, care, supervision, and kindly advice, but also may have the advantage and benefit of a mother's love and devotion for which there is no substitute." Spence, 283 N.C. at 687, 198 S.E.2d at 547. Similarly, the trial judge in the present case remarked that "the law of nature dictates that early in the life of a child, the mother has a distinct advantage in the opportunity to care for that child" and "that by the very nature of the age and gender of the minor child (28-month-old female), as it relates to the Defendant, that placement with the Defendant would be a negative aspect in the weighing of the positives and negatives." These "findings," not based on the actual evidence of the case, cannot be meaningfully distinguished from the abrogated tender years presumption.
The trial court _ and the mother on appeal _ invoke the doctrine of "judicial notice" to justify the trial court's reliance on his view of "the natural law of birthing." Once, however, a presumption or doctrine has been abolished, a court does not have the authority to resurrect that doctrine under the guise of taking judicial notice of the assumptions underlying the doctrine.
Rule 201(b) of the North Carolina Rules of Evidence specifies that "[a] judicially noted fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." With respect to naturalphenomena, our courts have been permitted to take notice of the fact it takes time for a hedge to grow four feet, Gaffney v. Phelps, 207 N.C. 553, 559, 178 S.E. 231, 234 (1934), and that pregnant women sometimes miscarry or have stillborn births, State v. Hall, 251 N.C. 211, 212, 110 S.E.2d 868, 869 (1959). Such facts are not subject to dispute.
Any subject, however, that is open to reasonable debate is not appropriate for judicial notice. See, e.g., Hinkle v. Hartsell, 131 N.C. App. 833, 837, 509 S.E.2d 455, 458 (1998) (reversing a trial court's award of primary custody to the mother when the court, in justification of its award, took judicial notice of criminal activity near the father's home without hearing any evidence on that issue). By enacting N.C. Gen. Stat. § 50-13.2(a), the General Assembly established that some of the personal beliefs recited by the trial court in this case are subject to debate in the custody context. In fact, the General Assembly reached the conclusion that such beliefs, regarding the advantages of a mother having custody of a young child, should not supplant analysis of the best interests of the child involved in the custody dispute. As a result, the trial court did not properly rely upon the principle of judicial notice when making findings of fact 16 and 33.
We note that instances may arise when findings as to the benefits of breast-feeding for an infant or evidence of a bond with a particular parent may be appropriate considerations by the trial court in a determination of the best interests of the child basedon the factual evidence presented in a particular case. The record in this case, however, does not reflect specific evidence or findings as to the closeness of M.G. and her mother or a particular bond that exists between the two. Rather, here the trial court appears to rely on personal experience in concluding that a "natural bond . . . develops between infants and a mother especially when the mother breast-feeds the infant." Indeed, the trial court here found that plaintiff's adjustment disorder "could hamper her ability to parent [M.G.], especially as this child grows and develops into a young woman who begins to think for herself and develops her own attitude. . . . The Court is unable to determine whether the Plaintiff will be able to deal with these conflicts in an appropriate manner in the future as the child matures." We hold that the trial court's findings in the instant case as to natural law and breast-feeding were not supported by evidence in the record and were not appropriate matters for judicial notice.
If findings of fact 16 and 33 are omitted, the order is left with findings that raise significant questions regarding both the fitness of the mother to have custody and whether split physical custody is in the best interest of M.G. The trial court may still determine, on remand, that joint legal custody with split physical custody is in the best interests of M.G., but, in light of the trial court's detailed, negative findings with respect to the mother, we cannot conclude that the trial court would necessarily have made the same determination in the absence of the beliefs included in findings of fact 16 and 33. When a court makes itsfindings of fact under a misapprehension of the law, the affected findings must be set aside and the case remanded so that the remaining evidence may be considered in its "true legal light." McGill v. Town of Lumberton, 215 N.C. 752, 754, 3 S.E.2d 324, 326 (1939). Accordingly, we reverse and remand so that the trial court may make a determination of custody in accordance with the best interests of M.G. based on the actual evidence presented at trial.
Reversed and remanded.
Judges HUNTER and McCULLOUGH concur.
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