Cook v. Cook

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

Opinion

BeocK, J.

Plaintiff argues convincingly that the trial court committed reversible error in privately questioning the minor child over plain 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.