Cook v. Cook

Court of Appeals of North Carolina

Cook v. Cook

169 S.E.2d 29, 5 N.C. App. 652, 1969 N.C. App. LEXIS 1418

CourtCourt of Appeals of North Carolina

DecidedAugust 13, 1969

Docket697DC373

StatusPublished

Cited by7 cases

This text of 169 S.E.2d 29 (Cook v. Cook) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cook v. Cook, 169 S.E.2d 29, 5 N.C. App. 652, 1969 N.C. App. LEXIS 1418 (N.C. Ct. App. 1969).

Pincite

Opinion

BeocK, J.

Plaintiff argues convincingly that the trial court committed reversible error in privately questioning the minor child over plain *654 tiff’s objection and despite a specific request from plaintiff that any testimony taken from the child be taken in the presence of the parties. In a court proceeding all parties are entitled to be present at all of its stages so that they may hear the evidence and have an opportunity to refute it. N.C. Const. Art. I, § 35. Our Supreme Court has upheld this constitutional right in a custody proceeding. See Raper v. Berrier, 246 N.C. 193, 97 S.E. 2d 782, where the trial court, over objection, in the absence of counsel and the parties, conferred privately with the minor child. Reversing the award of custody because the trial judge interviewed the child in private without consent of the parties, the Court stated: “While we recognize that in many instances it may be helpful for the court to talk to the child whose welfare is so vitally affected by the decision, yet the tradition of our courts is that their hearings shall be open. Without doubt the court may question a child in open court in a custody proceeding but it can do so privately only by consent of the parties.” Raper v. Berrier, supra, p. 195.

It may be that the custody issue was resolved so as to reach a correct and proper result; nevertheless procedural safeguards must be adhered to in our courts. For the reason indicated, the judgment of the trial court is vacated and the cause is remanded for a new trial.

Reversed and remanded.

Campbell and MoRRis, JJ., concur.

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BeocK, J.

Plaintiff argues convincingly that the trial court committed reversible error in privately questioning the minor child over plain *654 tiff’s objection and despite a specific request from plaintiff that any testimony taken from the child be taken in the presence of the parties. In a court proceeding all parties are entitled to be present at all of its stages so that they may hear the evidence and have an opportunity to refute it. N.C. Const. Art. I, § 35. Our Supreme Court has upheld this constitutional right in a custody proceeding. See Raper v. Berrier, 246 N.C. 193, 97 S.E. 2d 782, where the trial court, over objection, in the absence of counsel and the parties, conferred privately with the minor child. Reversing the award of custody because the trial judge interviewed the child in private without consent of the parties, the Court stated: “While we recognize that in many instances it may be helpful for the court to talk to the child whose welfare is so vitally affected by the decision, yet the tradition of our courts is that their hearings shall be open. Without doubt the court may question a child in open court in a custody proceeding but it can do so privately only by consent of the parties.” Raper v. Berrier, supra, p. 195.

It may be that the custody issue was resolved so as to reach a correct and proper result; nevertheless procedural safeguards must be adhered to in our courts. For the reason indicated, the judgment of the trial court is vacated and the cause is remanded for a new trial.

Reversed and remanded.

Campbell and MoRRis, JJ., concur.

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Bluebook (online)

169 S.E.2d 29, 5 N.C. App. 652, 1969 N.C. App. LEXIS 1418, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cook-v-cook-ncctapp-1969.

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