Atkinson v. . Downing

95 S.E. 487, 175 N.C. 244, 1918 N.C. LEXIS 47

• Court: Supreme Court of North Carolina
• Decided: March 27, 1918
• Status: Published

Opinion

Hoke, J.

It is fully recognized in this State that parents have prima facie the right of the custody and control of their infant children, a natural and substantive right not to be lightly denied or interfered with except when the good of the child clearly requires it. In re Mercer Fain, 172 N. C., 790; In re Mary J. Jones, 153 N. C., 312; Newsome v. Bunch, 144 N. C., 15; Latham v. Ellis, 116 N. C., 30.

In the case of Mary Jane Jones, it is held that “this parental right should prevail whenever, being of good character, they have the capacity and disposition to care for and rear their children properly in the walk of life in which they are placed, a right growing out of the parents’ duty to provide for their helpless offspring, not only enforcible as a police regulation, but grounded in the strongest and most enduring affections of the human heart. A substantial right, therefore, not to be forfeited or ignored except in some way or for some reason established or recognized by the law of the land.” It is also held with us in well-considered cases, and they are in accord with the rule now generally prevailing, that this right of the parents is not universal and absolute; but even as between individuals, the same may be modified and disregarded when it is made to appear that the welfare of the child clearly requires it. In re Alderman, 157 N. C., 507; In re Turner, 151 N. C., 474; In re Samuel Parker, 144 N. C., 170.

In Alderman’s case, supra, it was held that on proceedings in habeas corpus by a father for the possession of his child in the custody of the ■mother, the mother’s possession of the child will not be disturbed if it appears that therein the physical and moral and spiritual welfare' of the child will be the better preserved.

In Turner’s case the opinion quotes with approval from Chancellor Rent, to the effect “That the father, and on his death the mother, is generally entitled to the custody of'their infant children, inasmuch as they are their natural protectors for maintenance and education, but the courts of justice may, in their sound discretion and when the morals or safety or interests of the children strongly require it, withdraw the infants from the custody of the father or mother and place the care and custody of them elsewhere.”

And in the case of Samuel Parher, it was said in the concurring opinion, that in this country the disposition of the child rests in the sound legal discretion of the court, and it will be exercised as the best interests of the child may require, citing Newsome v. Bunch, 142 N. C., 19; Tiffany on Persons and Domestic Relations, p. 308; Shouler on Domestic Relations, sec. 240.

And, further: “The best interest of the child is being given more and more prominence in cases of this character and on especial facts has been held the paramount and controlling feature in well-considered decisions,” citing Bryan v. Lynn, 104 Ind., 227; In re Welsh, 74 N. Y., 299; Kelsey v. Greene, 69 Cann., 291.

Considering the facts presented in the light of these principles, we concur in his Honor’s view that, under present conditions, the child should be allowed to remain with the grandfather, who with the grandmother has had the care and maintenance of the child since its mother’s death, seven or eight years ago; that it has a safe and pleasant home with desirable associates and neighbors, and where it is being well cared for and instructed, while the conduct of the father, though he is spoken of as a man of good character, has not hitherto been such as to give assurance of that environment and watchful and intelligent care and' attention that would justify the Court in removing the child from its present home and surroundings.

We were cited by appellee to several authorities to the effect that the findings of the court below were conclusive with us except on an entire lack of evidence to support them. These cases were principally in civil causes of an ordináry kind heard on report and findings of a referee and of a judge on exceptions noted in which the position is undoubted. In cases of the present kind, and as now advised, while there is seeming conflict of authority on the subject, we are inclined to the opinion that the entire case, including the findings of the court, is subject to review on appeal. The question is not presented, however, as, in the present instance, we see no reason for disturbing the conclusions of the court below, either of fact or law, and on the record the judgment must be

Affirmed.