Doyle BERRYHILL
v.
Katherine Louise BERRYHILL (Deceased) and Joseph E. Strachan.
No. 80-581
Supreme Court of Alabama
January 22, 1982
410 S.2d 416 (Ala. 1982)
Appeal from the Circuit Court, Mobile
County, Cain J. Kennedy, J.
Walter Henley of Henley &
Clarke, Northport, for petitioner.
Claude D. Boone of McDermott, Deas &
Boone, Mobile, for respondents.
BEATTY, Justice.
Certiorari
was granted to determine whether or not the Court of Civil Appeals had
applied the correct standards of law in this child custody case. The
facts and issues are sufficiently described in that Court’s opinion.
We reverse and remand for further proceedings.
The Court of Civil Appeals has utilized
the wrong test of parental qualification for custody of a minor child
by its natural parent. Proceeding from a factual finding that “the
father showed little interest in providing for or being with his son
for the four years prior to the death of the mother,” the Court
concluded that “[h]e is, for all practical purposes, a stranger to his
son.” It then examines the father’s age and the lack of his
contributions to the child, concluding that “such evidence indicates
lack of parental interest closely akin to abandonment.” It concluded
that such “indications” from a natural parent who has not had actual
custody of his child, in a contest with a stepfather (the natural
mother being deceased) sufficiently overcome the strong presumption
that the natural parent is the fittest of the two for custody of the
child.
The disagreeable and heart-rending nature
of cases such as this cannot fail to be appreciated. However, this
Court has recently adhered to that strong presumption in Sullivan
v. Mooney, Ala., 407 So.2d 559 (1981), wherein we quoted
with approval from Griggs v. Barnes, 262 Ala. 357, 78 So.2d 910
(1955):
The law devolves
the custody of infant children upon their parents, not so much upon
the ground of natural right in the latter, as because the interests of
the children, and the good of the public, will, as a general rule, be
thereby promoted. It is a fair presumption, that so long as children
are under the control of their parents, they will be treated with
affection, and their education and morals will be duly cared for. . .
.
. . . So strong
is the presumption, that “the care which is prompted by the parental
instinct, and responded to by filial affection, is most valuable of
all”; and so great is the reluctance of the court to separate a child
of tender years from those who according to the ordinary laws of human
nature, must feel the greatest affection for it, and take the deepest
interest in its welfare, — that the parental authority will not be
interfered with, except in case of gross misconduct or where, from
some other cause, the parent wants either the capacity or the means
for the proper nurture and training of the child. Where a contest for
the custody of a child arises between its father or mother and a third
person, the superior claim of the parent ought not, in our opinion, to
be disturbed, unless it plainly appears that the interests of the
child require it to be set aside. [Striplin v. Ware, 36 Ala.
87, 89-90 (1860).]
The references of the Court of Civil
Appeals to the father’s age and present financial condition do not
establish the clear and convincing evidence that the natural father is
either unfit or unsuited for the role of the father, and the case,
therefore, must be remanded in order to allow the
well-intentioned trial court to consider the case on the principles
established in those decisions.
The issues concerning the in camera
questioning of the child and the admissibility of certain evidence
must also be addressed because the Court of Civil Appeals was in error
on each of these issues.
We are aware that the practice exists
among certain trial courts to conduct private conversations with
minors in chambers with the consent of opposing counsel. In the
absence of waiver or consent, however, the private interview by the
trial court cannot be condoned. To sanction such a procedure would fly
squarely in the face of the constitutional right of litigants to a
public trial. Nothing in American law allows “private” trials. That
custom went out with the abolishment of the Star Chamber, and the
right to a public trial was one of the rights wrested from the British
Crown and included in our Bill of Rights which remains the fundamental
law of our land. The fundamental principle is that the decision of a
court must be based on evidence produced in open court lest the
guaranty of due process be infringed.
Rule 43, ARCP, provides that “[i]n all
trials the testimony of witnesses shall be taken orally in open court,
unless otherwise provided in these rules.” There is no exception in
the rules for in camera examination of witnesses without the
presence or consent of attorneys and the right of
cross-examination.
In Raper v. Berrier, 246 N.C. 193,
97 S.E.2d 789 (1957), a proceeding was instituted by a natural father
for the purpose of having the court award him custody of his
thirteen-year-old daughter. During the course of the trial, the judge
conferred alone in his chambers with the minor in question. Custody
was awarded to the respondents, and the father claimed the court
committed error in conferring with the child privately. On review, the
appellate court held that it was error to receive testimony from
witnesses without affording the petitioner an opportunity to be
present and know what evidence was offered. While the court recognized
that in many instances it may be helpful to talk to the child whose
welfare is so vitally affected by the decision, it stated that
traditionally court hearings are open. This was cited as one of the
sources of our courts’ greatest strength. Carefully noting that there
was no suggestion that the able trial judge was improperly influenced
by the private interview and no such suggestion is made here, it was
ruled nevertheless that the petitioner’s right to hear all the
evidence offered in his case must not be denied him. It was said that
without doubt the court may interview a child in open court in a
custody proceeding but it can do so privately only by
consent of the parties. E.g., Cook v. Cook, 5 N.C. App. 652, 169
S.E.2d 29 (1969).
In a recent case, Romi v. Hamdan,
70 A.D.2d 934, 417 N.Y.S.2d 523 (1979), the Supreme Court of New York
reversed the custody determination of a trial court for conducting an
in camera off the record interview with a ten-year-old
child. As that court noted, in a custody proceeding “an enlightened,
objective and independent evaluation of the circumstances” must be
made; thus, it is error not to conduct a full and comprehensive
hearing to resolve the many factual issues raised.
In the present case, appellant objected to
the in camera examination without stating a ground as required
by Rule 46, ARCP. The failure to state a “ground,” however, is not
fatal if the ground is so manifest that the trial court and counsel
cannot fail to understand it. Clearly, the objection here was based
upon the due process right of cross-examination.
The evidence question came about in this
manner. During the course of the custody proceeding, the petitioner
asked the respondent if he had ever killed anyone. Although that
question may be considered overbroad, we disagree with the conclusion
by the Court of Civil Appeals that the relevancy of the question was
not shown.
If character or reputation becomes a
matter in issue in a civil suit, evidence with reference to such a
party’s reputation or character is admissible.
Holcombe v. Whitaker, 294 Ala. 430, 318 So.2d 289 (1975).
McElroy’s Alabama Evidence, § 34.01 at 60 (3rd ed.) recites
that:
Where, by the nature of the case, the
character of a party is placed in issue then proof of the general
reputation for that character may be elicited.
In a child custody proceeding, character
is obviously in issue and “evidence touching the character, conduct,
and reputation of the parties, or any other evidence tending to throw
light on their fitness to be the custodian of the child, is
admissible.” Milner v. Gatlin, 143 Ga. 816, 85 S.E. 1045, 1047
(1915). As recently as last year, in Bracy v. Sippial Electric Co.,
Ala., 379 So.2d 582 (1980), this Court recognized that specific acts
as well as general reputation were admissible when a trait of
character became an issue in a particular case, either as impeachment
evidence or as substantive evidence. See also Code of 1975, § 30-3-1.
Thus, the question directed toward the respondent asking whether he
had ever killed anyone would be relevant as an attempt to show a
specific act of bad character bearing on the “fitness” of the
respondent. Thus, not only was the question relevant, but peculiarly
so when the qualifications for custody of a minor child were being
examined. The Court of Civil Appeals may have concluded that a
homicide committed by a witness would be admissible to impeach him
only if that homicide resulted in a conviction of a crime. Such a
conclusion, if made, was erroneous.
For these reasons the judgment of the
Court of Civil Appeals is reversed, and the case is remanded to that
court for an order remanding the case to the trial court for further
proceedings.
REVERSED AND REMANDED WITH DIRECTIONS.
ALMON, SHORES, EMBRY and ADAMS, JJ.,
concur.
JONES, J., is recused.
TORBERT, C.J., and MADDOX and FAULKNER, JJ.,
dissent.
MADDOX, Justice (dissenting).
I am quite aware of the law which gives to
a natural parent the superior claim to the custody of his or her
child, but four judges (the trial judge and three appellate judges)
have determined, under the facts of this case, that it plainly
appears that the interests of the child require that custody be
in one other than the natural parent. Since I find no misapplication
of the law by either the trial judge or the appellate judges, I would
affirm their judgment that the interests of the child, in this
case, were plainly shown to be best served by awarding his custody to
one other than his natural father. There is no indication that the
trial judge was unfamiliar with the rule of law which gives the parent
of a child a superior claim to his custody; therefore, I would affirm
his determination that it was clearly in the best interests of the
child to be placed in the custody of one other than his parent.
On the issue of the in camera
hearing, the Court of Civil Appeals has determined that the objection
made by the petitioner was insufficient. In any event, the Court of
Civil Appeals determined that if the trial judge committed error in
conducting an in camera hearing, it was harmless error.
TORBERT, C.J., and FAULKNER, J., concur.
