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This paper is designed to provide practical tips and pointers with respect to a variety of evidentiary and procedural issues that typically arise during the trial of a domestic action. It is my hope that common sense suggestions based upon legal precedents will help the reader deal with these issues.

The role of the child witness testifying in a custody proceeding

One issue that typically comes up during the trial of a custody action involving adolescent children is how the court will treat the children’s testimony at the trial. A child’s testimony about her wishes as to her own custodial arrangement carries much strength in advancing a party’s claim for custody. On the other hand, our courts have attempted over the years to protect the tender sensibilities of children testifying at trial given the stressors placed upon children by the court system in general and the competing claims of parents over the children in particular.

The general rule for the role of a child’s preferences in a custody proceeding was succinctly summarized over twenty years ago in a noted treatise on North Carolina family law:

When the child has reached the age of discretion, the court may consider the preferences or wishes of the child to live with a particular person. A child has attained an age of discretion when it is of an age and capacity to form an intelligent or rational view of the matter. The expressed wish of a child of discretion is, however, never controlling upon the court, since the court must yield in all cases to what it considers to be for the child’s best interest, regardless of the child’s personal preference. The preference of a child would seem to have its greatest weight when a controversy is between the parents and both parents are equally fit persons. The preference of the child should be made upon a considered and rational judgment, and not made because of some temporary dissatisfaction or passing whim or some present lure.

3 Lee, N.C. Family Law, §224 (1981). This passage has been cited with consistent frequency by North Carolina appellate courts. See, e.g., James v. Pretlow, 242 N.C. 102, 105 (1955) (wishes of child of sufficient age entitled to considerable weight by judge when contest between competing parents, but is not controlling).

It is error for the trial court not to consider the wishes of a child of suitable age and competency. See Spears v. Snell, 74 N.C. 210 (1876) (error not to examine 13 year old child as to his feelings in guardianship proceeding); see also Kearns v. Kearns, 6 N.C. App. 319, 325 (1969) (error not to consider testimony of four children ages 12, 11, 9 and 7 years of age in custodial action). However, since the wishes of a child are not controlling, there is no error if the trial court fails to make findings as to the child’s preferences. Hinkle v. Hinkle, 266 N.C. 189 (1966); Wolfe v. Wolfe, 64 N.C. App. 249, 254, dsc. rev. den., 310 N.C. 156 (1984) (“well established” that failure to find facts as to child’s preference not grounds for reversing custody award).

What constitutes a suitable age of discretion assumedly varies upon the facts of each particular case. The following is the closest our Court of Appeals has come to promulgating a “bright line” rule on this subject:

The nearer the child approaches the age of fourteen, the greater is the weight which should be given to the child’s custodial preference.

As to when the child is mature and intelligent enough to formulate a rational judgment concerning its welfare, it is generally agreed that in the absence of a statute to the contrary, no specific age is set by law in this regard, but the question depends on the mental capacity, or the mental development, or the intelligence of each child in question.

Mintz v. Mintz, 64 N.C. App. 338, 341 (1983) (quoting 42 Am. Jur. 2d “Infants”, §45 (1969)).

Mintz has not been expressly followed by any court. A review of the case law reveals that trial courts have properly considered the testimony of a single child as young as nine or ten in determining custody. See In re Peal, 305 N.C. 640 (1982) (9 year old); Harris v. Harris, 115 N.C. 587 (1894) (9½ year old); In re Custody of Stancil, 10 N.C. App. 545, 547-8 (1971) (10 year old). Courts obviously appear more willing to fashion custodial awards in accordance with children’s wishes if the children are older i.e. in their mid to late teens. See Clark v. Clark, 294 N.C. 554 (1978) (children of ages 15, 13 and 12); Elmore v. Elmore, 4 N.C. App. 192 (1969) (16 year old). But see Brooks at 630-1 (16 year old’s wishes to live with father not followed in court’s award of custody to mother; no error). There are also several recent cases that suggest that the child’s wishes are of less weight when considering issues of visitation as opposed to setting a custodial arrangement. See, e.g., Bost v. Nortwick, 117 N.C. App. 1 (1994) (minor child’s desire not to be with father not controlling in determining father entitled to visitation); Reynolds v. Reynolds, 109 N.C. App. 110 (1993) (best interests of child dictated that child have specified visitation schedule with father despite child’s express desire not to exercise visitation with father).

There have been several decisions by the Court of Appeals that suggest the trial court should pay “great” or “substantial” weight to the child’s wishes in custodial actions. This higher standard of deference is usually seen in those cases where the “non-desired” parent has demonstrated significant problems in parenting. Thus, in Almond v. Almond, 42 N.C. App. 658 (1979), the court found a substantial change of circumstances warranting a change of custody for children ages 14 and 10 from father to mother even when the mother was living in an adulterous relationship in a three bedroom trailer. The children had a poor relationship with their father and wished to live with their mother. The Almond court found two factors requiring the trial court to give “great weight” to the children’s wishes. First, the children were of an age to exercise discretion in choosing their custodian. Second, the parties themselves gave considerable weight to the children’s wishes when they previously stipulated in a separation agreement that the father was to have custody of the children. See also Campbell v. Campbell, 63 N.C. App. 113 , dsc. rev. den., 309 N.C. 460 (1983) (no error in trial court’s according great significance to 13 year old’s wish to live with grandmother, when child had lived with grandmother all of his life, had sporadic contact with mother, and had run away from home and back to grandmother when mother had snatched child).

Traditionally trial judges have been accorded broad discretion in deciding whether or not children would be heard in open court or in chambers. See, e.g., Daniels v. Hatcher, 46 N.C. App. 481, 487, dsc. rev. den., 301 N.C. 87 (1980). There is some question based upon the case law as to what authority, if any, the trial judge retains to control how and under what conditions the child is questioned. It seems clear error for the trial judge to question the minor child in chambers in the presence of the parties’ counsel but not the parties. Cook v. Cook, 5 N.C. App. 652 (1969) (North Carolina Constitution Article I, §35 guarantees parties right to be present at all stages so parties may hear the evidence and have opportunity to refute it; this includes custody proceedings); Raper v. Berrier, 246 N.C. 193 (1957) (constitutional error in custody proceeding for trial court to question child in chambers in absence of parents and counsel). However, the court of In re Barkley, 61 N.C. App. 267, 270 (1983) rejected a respondent’s argument that her rights were violated in a proceeding to terminate her parental rights when the trial court excluded her from the courtroom while her eleven year old son testified in open court. The Barkley court never addressed the respondent’s constitutional rights. It did find that her statutory rights under the juvenile code to confront and cross-examine witnesses were subject to “due limitations” because of the civil nature of the proceeding. Barkley at 270. The Barkley court distinguished the holding in Cook on the grounds that the trial judge did all the questioning in Cook, while in Barkley the respondent’s court appointed attorney was allowed to cross-examine the respondent’s son with the testimony being recorded. Id.

Attempting to draw one set of consistent rules from these precedents is problematic. It seems that the trial judge still has the discretion to determine if a child will testify in chambers or in open court. However, it appears all but certain that the parties can demand that wherever the child testifies, the child must testify in the presence of the parties and be subject to cross-examination by the parties’ counsel with the questions and answers being recorded. Barkley appears to be a result oriented decision inconsistent with the Cook and Raper decisions that skirts the constitutional issue posed by Article I, §35 of the North Carolina constitution by simply not addressing it.

Despite the parties’ control in this arena, it is my experience that trial courts have recently attempted to pressure parties into allowing the court to question the child in chambers without either party being present and with the child’s testimony being withheld from the parties (and their counsel). Under this arrangement the trial court will still consider the child’s testimony in making her custody decision. There is no question that parties can consent to the child being questioned in private outside the presence of the parties and counsel. Raper at 195. However, counsel should be very deliberate in advising parties to give up their constitutional right to confrontation, even in light of significant pressure from the trial court to do so. As a practical matter I would never advise a party to give up the right to be present for their child’s testimony if I thought that child’s testimony would be damaging to my client. This position may not be palatable when considering the matter from the child’s perspective. After all, having to offer critical testimony about a parent in front of that parent may significantly stress a child. However, we as advocates have an ethical obligation to zealously advocate for our clients. A child’s stress incurred in critically testifying about a parent may cause that child to dampen or even change that testimony in the parent’s presence.

Role of trial court in preserving error of excluded evidence/testimony

Despite the seeming “anything goes” approach of many trial courts in determining the admissibility of evidence in domestic trials, there will still be the occasional incident when the judge sustains your opponent’s objection to the entry of your evidence. Under normal circumstances you would then make an offer of proof to preserve on appeal your objection to the court’s exclusion of your evidence. In a jury case, this normally is no problem. The trial judge will exclude the trier of fact, the jury, from the courtroom, and you will be allowed to make a record of your excluded evidence in the judge’s presence. Since the judge is not trying the facts, there is normally no problem in his hearing evidence that may ultimately be determined to be incompetent.

However, there is rarely if ever a jury finding facts in a domestic proceeding. The judge is both trier of fact and custodian of law in the proceeding. An offer of proof for excluded evidence by definition brings the trial judge’s two roles in conflict. The reason for preventing the trier of fact from hearing an offer of proof is to prevent that fact finder from being improperly influenced by evidence that has been deemed inadmissible by the judge. Yet an offer of proof in a bench trial by definition subjects the trier of fact (the judge) to evidence the judge has just deemed infirm. Is the judge supposed to maintain his position as the law’s custodian and preside over the making of the offer of proof and subject himself to the evidence he has just deemed incompetent? Or is the judge supposed to seclude himself from the proceedings while the offer of proof is being made? Taking such action is consistent with the premise that the trier of fact should not be exposed to incompetent evidence in an effort to avoid being unfairly influenced by the same. On the other hand, a judge’s absence from any part of a judicial proceeding seems inconsistent with the judge’s role as the law’s custodian at trial.

Rule 43(c) of the North Carolina Rules of Civil Procedure governs the judge’s role in making records of excluded evidence:

In an action tried before a jury, if an objection to a question propounded to a witness is sustained by the court, the court on request of the examining attorney shall order a record made of the answer the witness would have given. The court may add such other or further statement as clearly shows the character of the evidence, the form in which it was offered, the objection made and the ruling thereon. In actions tried without a jury the same procedure may be followed, except the court upon request shall take and report the evidence in full, unless it clearly appears that the evidence is not admissible on any grounds or that the witness is privileged.

This rule seems to require the trial judge to hear evidence just deemed inadmissible upon a party’s request by requiring the evidence to be “reported in full.” While the trial judge is given an option to prevent such reporting on “clearly” apparent grounds of privilege or inadmissibility, this option begs the question of how the judge can make this “clear” determination without hearing the evidence in question.

My own experience with trial judges when I request an offer of proof after the judge has sustained my opponent’s objection generally falls into three categories. Some judges will grumble and change their ruling on admissibility, at which time the evidence is admitted not as an offer of proof but as substantive evidence in the case. Other judges will sit stoically while I make a record of the evidence the judge has just deemed incompetent, and thus be exposed to evidence the judge has just implicitly found to be unfairly prejudicial to the trier of fact. Recently, though, I have had several occasions where the judge has removed herself from the courtroom before I entered my offer of proof in the record. In these instances the judge has apparently weighed her conflicting obligations as trier of the facts and custodian of the law and apparently made the determination that her role as fact finder is more important than her role as referee of the proceeding.

I could find no North Carolina case after the adoption of our current rules of civil procedure that addressed whether such actions by a judge in a bench trial constitute error. There are several cases from other jurisdictions that suggest that the trial judge has a responsibility to be present for offers of proof in bench trials. For example, in State v. McMahan, 761 A.2d 50 (Me. 2000), the Maine Supreme Court held that the trial judge’s absence during an offer of proof in a bench trial was error requiring the Supreme Court to vacate the judgment. In McMahan the trial court allowed the defendant to make an offer of proof, but the offer could be made only during recess and when the trial judge was not present. In finding that the trial judge committed reversible error, the McMahan court noted “[w]hile offers of proof need not be allowed in each instance if the nature of the evidence is apparent from the question or the context of the trial, offers of proof when made are directed to the court to increase the court’s understanding of the issue. The rule necessarily assumes the presence and attention of the court.” Id. at 54. The Maine Supreme Court further stated that “[t]he trial judge’s remarks suggest that he believed it improper for a judge sitting as factfinder to hear, through an offer of proof, evidence that he had already ruled to be inadmissible; that the impartiality of his factfinding would thereby be put at risk. Under our system of nonjury trials, however, the judge’s receipt of offers of proof is not only proper, but absolutely necessary if he is to carry out his full judicial responsibilities.” Id. at 54 (quoting MacCormick v. MacCormick, 478 A.2d 678, 682 (Me. 1984)). Cf. Commonwealth v. Collado, 690 N.E.2d 424 (Mass. 1998) (in bench trial when party makes offer of proof judge must pass on admissibility of evidence and if it is inadmissible, ignore the evidence; this risk always inherent in bench trials). But cf. People v. Walker, 374 N.E.2d 880, 883 (Ill. App. 1978) (no prejudicial error to defendant in bench trial when trial judge exposed to incompetent evidence in form of offer of proof; trial court both times when evidence originally offered and again when prosecutor made offer of proof deemed evidence inadmissible and immediately ordered both proffer and offer stricken from record).

There is a North Carolina Supreme Court case decided prior to the implementation of Rule 43(c) that appears to require the participation of the trial court for an offer of proof. Electro Lift, Inc. v. Miller Equipment Company, 270 N.C. 433 (1967). The Electro Lift record on appeal included twenty-six exceptions to evidence excluded by the trial court. The exceptions were supported by “offers” of proof consisting of the appellant’s attorney recitation of what the witnesses’ excluded response would have been, specifically noting that each response was made “apart from the Court’s supervision.” Electro Lift at 435. The Supreme Court ordered a new trial and had this to say on the court’s role when dealing with the record of excluded evidence:

The recognized method for supplying an excluded answer is to excuse the jury at the close of the witness’ testimony and then have him, in the presence of the court, give the proposed answer. Another custom permits the answer to be supplied at a later time, when this is done by order of the court or by agreement of the parties. From the court’s notation, it is apparent that none of these methods were used; and the statement that the witness would have answered, etc., could be based upon the attorney’s information or deduction, or, of course, could have been made by the witness. The court was liberal to the defendant in letting the record show what the defendant contended the answer would have been, but we cannot give consideration to parts of the record furnished “apart from the court’s supervision,” and each of the exceptions based on similar questions and answers is without merit.

Electro Lift at 436.

Electro Lift could be distinguished from the pertinent part of N.C.R.Civ.P. 43(c) on numerous grounds: that is a pre-Rules of Civil Procedure case, that it only applies to jury trials, etc. However, Electro Lift certainly appears to me to be persuasive authority for the proposition that the trial judge must “supervise” (i.e. be present for) an offer of proof when made. The plain language of N.C.R.Civ.P. 43(c) certainly seems to indicate that it is the rare occasion when a judge in a domestic case should excuse himself during the admission of an offer of proof into the record. Furthermore, since our appellate courts have repeatedly held that trial judges in bench trials are deemed to have ignored incompetent evidence admitted at trial, there appears to be no legal impediment to the trial judge’s presence at the offer of proof. Of course, if the trial judge is ultimately deemed by some future appellate decision to be required to be present during the making of an offer of proof, then practitioners may presumably at will air all types of clearly inadmissible evidence under the pretext of making an offer of proof. The net effect of such actions would presumably be equivalent to similar actions being taken in a jury trial—namely, to improperly influence the factfinder.

Trial court’s requirement to take judicial notice

One way to get the court to consider certain evidence in your case is to request the court to take judicial notice of particular facts you want the court to consider. Under North Carolina Rule of Evidence 201(d), a trial judge is required to take judicial notice of facts if you request the court to take such notice and supply the court with the necessary information. My experience is that most judges refusing to take judicial notice requested of them are refusing to take such notice implicitly (if not expressly) because the offering party has not provided the court with the necessary information. Since most times the request to take judicial notice arises in the heat of battle and arises in situations not foreseen by the requesting party, there is a good chance that the requesting party does not have the “necessary information” to provide the judge. However, N.C.R.E. 201(f) allows for judicial notice to be taken at any stage of a proceeding. So if the court is rejecting your request for notice because you don’t have the “necessary information” to compel the court to honor your request, there is nothing preventing you from at the end of the day obtaining whatever is required to compel notice and renewing your request for notice at the beginning of the next court session concerning your case.

There have been a number of reported appellate decisions where our appellate courts have approved the taking of judicial notice in domestic trials. There is no question but that a court can take judicial notice of findings of prior proceedings in the cause. See, e.g., Davis v. McMillian, 2002 N.C. App. LEXIS 862 (2002). Judicial notice can also be taken of exhibits admitted at prior proceedings between the parties. Bowles v. Bowles, 287 N.C. 163 (1975) (trial court taking judicial notice of party’s tax returns admitted at previous proceeding between parties). But judicial notice has also been taken of more “esoteric” matters, such as the general effect of inflation on raising a child (Walker v. Walker, 63 N.C. App. 644 (1983)), and the “fact” that spouses’ typically combine separate earnings in joint accounts to draw from those accounts to sustain a family or enhance a standard of living (McClure v. McClure, 64 N.C. App. 318 (1983)).

There are fairly recognizable limits to what courts can take judicial notice of in domestic actions. For example, in Hinkle v. Hartsell, 131 N.C. App. 833 (1998), the Court of Appeals ruled the trial judge abused his discretion in a custody case by taking judicial notice of the high amount of crime in and around the motel where the defendant/father lived, finding that such a “fact” was in dispute and “is no doubt a matter of debate within the community.” Hinkle at 837. It was also error for the trial court in an alimony proceeding in Taylor v. Taylor, 46 N.C. App. 438, 444-5 (1979) to take judicial notice of the market value and easy liquidity of tracts of real estate owned by the obligor.

Judicial notice is an underused mechanism to compel the court to consider facts important to your case. Given the wide amount of discretion in domestic cases already accorded to trial judges by our appellate courts, the use of any mechanism to restrain such discretion in an effort to produce more uniform results across courts should always be considered by any serious practitioner.

Do the admission of business records require live testimony?

It is all too common in many domestic trials for reams of documents to be admitted without the slightest concern for either authentication of the documents or whether the documents constitute inadmissible hearsay. Of course, more often than not there is no harm in the admission of such documents. The parties may have stipulated as to the admissibility of the documents beforehand in a pretrial order. Or it may be that a party against whom documents are being offered is not contesting the admissibility or content of the proffered documents.

Yet there are also occasions when a party has subpoenaed a business’ records to be offered at trial against an opponent. More often than not the opponent has neither been provided a copy of the document beforehand nor desires its admission into the case. Business records by definition are hearsay, and North Carolina Rule of Evidence 803(6) provides the requirements for their admission at trial:

A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, of from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method of circumstances of preparation indicate lack of trustworthiness.

(Emphasis added.)

The highlighted portion of N.C.R.E. 803(6) appears to indicate that some type of testimony is necessary to have the business records authenticated and admitted into evidence. But obtaining live testimony for what is many times a ministerial act (“Yes, these are our business records. Can I go now?”) is cumbersome at best.

The exception does not define what “testimony” is required for the admission of the business records. One can quickly find cases that define testimony as that including statements offered in affidavit form (see, e.g., Smith v. Richmond County, 150 N.C. App. 291 (2002) (referencing “affidavit-testimony” of several witnesses) as well as cases that suggest that affidavits are not testimony (see, e.g., Miles v. Martin, 147 N.C. App. 255 (2001) (referring to “affidavits or testimony”). However, as a general proposition our Supreme Court has relaxed the requirements for authenticating business records, stating that such records may “be established by circumstantial evidence” and need not “be authenticated by the person who made them[.]” State v. Wilson, 313 N.C. 516, 533 (1985). These relaxed standards would presumably allow for the “testimony” requirements of N.C.R.E. 803(6) to be satisfied through affidavit rather than live testimony.

There is one recent case where the Court of Appeals upheld the use of a custodian’s affidavit to satisfy the requirements of N.C.R.E. 803(6). In Chamberlain v. Thames, 131 N.C. App. 705 (1998), the Court of Appeals found no error in the trial court’s admission of hospital records in an automobile negligence action. The hospital records were accompanied by an affidavit stating the custodian’s name and position; that the records were being produced in response to a subpoena and in lieu of a personal appearance by the custodian; that the attached records were authentic, true and correct copies made in the regular course of business at or near the time of the acts conditions or events recorded; and that to the best of the affiant’s knowledge the medical records were made by persons having knowledge of the information set forth. Chamberlain at 716-7. The Chamberlain court succinctly held that “[t]his affidavit satisfied the requirements of Rule 803(6).” Chamberlain at 717.

It should be noted that N.C.G.S. §8-44.1 and North Carolina Rule of Civil Procedure 45(c) specifically authorizes the admission of hospital records through affidavit of the records custodian in addition to live testimony from the custodian as to the records. So the result in Chamberlain is not that far a stretch from current requirements. Chamberlain does provide a precedent, however, for the use of record custodian’s affidavit in lieu of live testimony in order to have business records introduced. Chamberlain does not address the issues inherent in this approach—namely, that the party against whom the documentation is being offered as no opportunity to examine the custodian to determine if there are deficiencies in the custodian’s testimony that would prevent entry of the records. Nonetheless, use of an affidavit seems far preferable to current practice many times of no testimony at all, instead relying upon the trial judge to peruse the document offered to determine if it is authentic.

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