In Re Custody of Poole

Court of Appeals of North Carolina

In Re Custody of Poole

173 S.E.2d 545, 8 N.C. App. 25, 1970 N.C. App. LEXIS 1471

CourtCourt of Appeals of North Carolina

DecidedMay 6, 1970

Docket7010DC7

StatusPublished

Cited by12 cases

This text of 173 S.E.2d 545 (In Re Custody of Poole) 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

In Re Custody of Poole, 173 S.E.2d 545, 8 N.C. App. 25, 1970 N.C. App. LEXIS 1471 (N.C. Ct. App. 1970).

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Opinion

Campbell, J.

Orders awarding custody of children may be modified by a court when it has been shown that there has been a substantial “change of circumstances affecting the welfare of the child.” Crosby v. Crosby, 272 N.C. 235, 158 S.E. 2d 77 (1967). If the parent awarded custody of children were subsequently to become unfit, it would be possible for the trial court, upon proper findings, to grant custody to a fit person. Where there is no evidence that the fitness or unfitness of either party has changed, the trial court may not modify a prior order awarding custody unless some other sufficient change of condition is shown. Stanback v. Stanback, 266 N.C. 72, 145 S.E. 2d 332 (1965).

We are of the opinion that the findings of the trial judge in the instant case do not support modification of the initial custody order which found her to be fit to have custody. The only change shown here is that Nancy has been adjudged in contempt for violating an order of the court regarding her association with one John W. Gregory, III. There is no finding that the association with Gregory was immoral or that it was detrimental to the children’s welfare. We do not feel that the citation of Nancy for contempt in the instant case, without more, is a sufficient change of condition to require a finding that “Nancy White Poole is not a fit and proper *29 person to have custody * * *” of the children involved herein. Stanback v. Stanback, supra; Neighbors v. Neighbors, 236 N.C. 531, 73 S.E. 2d 153 (1952).

The welfare of the children is the determining factor in the custody proceedings and the award of custody based on that factor will be upheld when supported by competent evidence. In Re Custody of Ross, 1 N.C. App. 393, 161 S.E. 2d 623 (1968); cert. den., 274 N.C. 274.

Reversed.

ParKer and HedricK, JJ., concur.

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Campbell, J.

Orders awarding custody of children may be modified by a court when it has been shown that there has been a substantial “change of circumstances affecting the welfare of the child.” Crosby v. Crosby, 272 N.C. 235, 158 S.E. 2d 77 (1967). If the parent awarded custody of children were subsequently to become unfit, it would be possible for the trial court, upon proper findings, to grant custody to a fit person. Where there is no evidence that the fitness or unfitness of either party has changed, the trial court may not modify a prior order awarding custody unless some other sufficient change of condition is shown. Stanback v. Stanback, 266 N.C. 72, 145 S.E. 2d 332 (1965).

We are of the opinion that the findings of the trial judge in the instant case do not support modification of the initial custody order which found her to be fit to have custody. The only change shown here is that Nancy has been adjudged in contempt for violating an order of the court regarding her association with one John W. Gregory, III. There is no finding that the association with Gregory was immoral or that it was detrimental to the children’s welfare. We do not feel that the citation of Nancy for contempt in the instant case, without more, is a sufficient change of condition to require a finding that “Nancy White Poole is not a fit and proper *29 person to have custody * * *” of the children involved herein. Stanback v. Stanback, supra; Neighbors v. Neighbors, 236 N.C. 531, 73 S.E. 2d 153 (1952).

The welfare of the children is the determining factor in the custody proceedings and the award of custody based on that factor will be upheld when supported by competent evidence. In Re Custody of Ross, 1 N.C. App. 393, 161 S.E. 2d 623 (1968); cert. den., 274 N.C. 274.

Reversed.

ParKer and HedricK, JJ., concur.

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173 S.E.2d 545, 8 N.C. App. 25, 1970 N.C. App. LEXIS 1471, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-custody-of-poole-ncctapp-1970.

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