In Re Shelton

164 S.E. 332, 203 N.C. 75, 1932 N.C. LEXIS 308

• Court: Supreme Court of North Carolina
• Decided: June 15, 1932
• Status: Published

Opinion

Connor, J.

The law in this State recognizes the natural right of parents to the custody and control of their child or children during infancy. Thus in Brickell v. Hines, 179 N. C., 254, 102 S. E., 309, Hoke, J., says: “It has been held in several recent decisions, where the question was directly considered, that parents have prima facie the right to the custody and control of their infant children, and that the same being a natural and substantive right, may not be lightly denied, or interfered with by action of the courts. It is further held in these and other cases that this right of the parents is not universal and absolute, but that the same may be modified and disregarded when it is made to appear that the welfare of the child clearly requires it. In re Warren, 178 N. C., 43, 100 S. E., 76; In re Means, 176 N. C., 307, 97 S. E., 39; Atkinson v. Downing, 175 N. C., 244, 95 S. E., 987, the last case citing among others In re Fain, 172 N. C., 790, 90 S. E., 928; In re Mary Jane Jones, 153 N. C., 312, 69 S. E., 217; Newsome v. Bunch, 144 N. C., 15, 56 S. E., 501; In re Alderman, 157 N. C., 507, 73 S. E., 126; In re Turner, 151 N. C., 474, 66 S. E., 431; In re Samuel Parker, 144 N. C., 170, 56 S. E., 878. It is also the accepted position, as pertinent to the facts of tbis record, that, when an infant child has been duly adopted, pursuant to legislative provision and before a court having jurisdiction of the cause and the parties, this right of the natural parent, under the regulations usually prevailing in such cases, as to the care, custody and control of the child, is thereby transferred to the adopting parents, and the force and effect of the proceedings and decree will follow the parties on a change of domicile and control the personal relationship existent between them. The right of the-adopting parents, however, is usually no greater than that of the natural, and as said in Downing’s case, ‘Here, too, the welfare of the child is entitled to full consideration, and on special facts, may become controlling in the dis-XDOsition of its custody/ ” In that case judgment awarding the custody of her illegitimate child to the mother, who had married since its birth, and was found by the court to be a suitable person to have its custody and control, was affirmed, although the respondent had adopted the child pursuant to an order entered in a proceeding to which the mother was a party. The court found that it was to the best interest of the infant child that she be placed in the custody of her natural parents, and that her future welfare will be thereby materially promoted.

In the instant case, the court found that the order of adoption under which respondents claim the right to the custody of the infant child of the petitioner, is void, for the reason that petitioner was not a party to the proceeding in which the order was made. Truelove v. Parker, 191 N. C., 430, 123 S. E., 295. Notwithstanding the amendment to C. S., 185, by chapter 171, Public Laws 1927, the order is void as to the petitioner, the mother of the child. In view of this finding to which there was no exception, the respondents have no legal right to the custody of the child, and in the absence of a finding by the court that the petitioner had wilfully abandoned her child, the petitioner has not forfeited her legal right to such custody. For this reason, the finding by the court that it is to the best interest of the child that she remain in the home of the respondents, and in their custody, is not controlling. As there was no finding of fact that the petitioner is not a suitable person to have the custody and control of her child, she has not forfeited her natural and legal right to such custody and control. It is well settled as the law of this State that the mother of an illegitimate child, if a suitable person, is entitled to the care and custody of the child, even though there be others who are more suitable. Ashby v. Page, 106 N. C., 328, 11 S. E., 283. As it appears from the findings of fact made by the court tbat the petitioner bas not been deprived of ber legal right to the custody of ber child by a valid order of adoption by the respondents, and bas not forfeited such right by a wilful abandonment of the child, and is a suitable person to have its care and custody, there is error in the judgment awarding the custody of the child to the respondents.

To tbe end tbat judgment may be entered awarding tbe custody of tbe child to tbe petitioner, tbe judgment is

Reversed.