Wall v. Hardee , 240 N.C. 465 ( 1954 )

82 S.E.2d 370 (1954) 240 N.C. 465

WALL
v.
HARDEE.

No. 311.

Supreme Court of North Carolina.

June 4, 1954.

Sam B. Underwood, Jr., Greenville, for petitioner, appellee.

James & Speight, Greenville, LeRoy Scott, Washington, for respondent, appellent.

PARKER, Justice.

This special proceeding is brought under G.S.N.C. § 50-13, and was heard after notice by the resident judge of the district in his district. All parties were present with counsel and witnesses. Judge Frizzelle had jurisdiction. In re Cranford, 231 N.C. 91, 56 S.E.2d 35.

It is well settled law in this jurisdiction that the mother of a bastard child is its natural guardian, and, as such, has a legal right to its custody, care and control, if a suitable person, even though others may offer more material advantages in life for the child. The mother's right is based upon the ground that there is frequent doubt as to the child's father, and that the mother, nearest in interest and affection to the child, will best promote its welfare. In re Cranford, supra; In re Shelton, 203 N.C. 75, 164 S.E. 332; Ashby v. Page, 106 N.C. 328, 11 S.E. 283. This seems to be the universal rule. Annotation 51 A.L.R. 1507; 7 Am.Jur., Bastards, Sec. 61.

This rule is not absolute. There have been, and will be, cases where the best interests of the bastard child required that its custody be taken from the mother, and placed elsewhere. While the courts are reluctant to do this, for reasons real as well as apparent, they do not hesitate, where it clearly and manifestly appears the best interests and welfare of the child demand it. In re Cranford, supra; In re Foster's Adoption, 209 N.C. 489, 183 S.E. 744; In re Shelton, supra; Annotation 51 A.L.R. 1510; 7 Am.Jur., Bastards, Sec. 65. It is true the mother may have erred prior to its birth. She may have "loved not wisely but too well." Yet there is a locus penitentiae. Pierce v. Jeffries, 103 W.Va. 410, 137 S.E. 651, 51 A.L.R. 1502 and Annotation. See Judd v. Van Horn, Va., 81 S.E.2d 432.

The petitioner and her husband live in Riverdale, Maryland, near Washington, D. C., and if she is awarded the custody of Harry Anthony Hardee, she will carry him there. Judge Frizzelle's order awarding permanent custody of the child to petitioner permits his removal from North Carolina.

This Court said in In re DeFord, 226 N.C. 189, 37 S.E.2d 516, 518: "The rule that the removal from the State of a child whose custody is at issue will not be permitted is not an absolute or arbitrary principle and may be departed from when it is clearly manifested that the welfare of the child requires it." See also Griffith v. Griffith, N.C., 81 S.E.2d 918.

Judge Frizzelle found as facts that the home of the petitioner is a fit place in which to rear Harry Anthony Hardee, and that petitioner is of good moral character, and bears a good reputation at this time. He apparently deemed such findings of fact sufficient to award the custody of Harry Anthony Hardee to his nonresident mother, for he made no findings of fact that such permanent removal from the State would be for the best interests and welfare of the child. The conclusion seems patent that the trial judge found insufficient facts. In re DeFord, supra; Griffith v. Griffith, supra.

One of the gravest responsibilities that can be placed upon a court—and one of the most heart searching—is to determine the proper custodian of a child. Courts should ever bear in mind that children are not chattels, but intelligent and moral beings, and their happiness and welfare is a matter of prime consideration.

In order that the evidence may be considered, the facts found, and judgment entered in accord with the law set forth in In re DeFord, supra; and in Griffith v. Griffith, supra, the facts found are set aside, the judgment reversed, and the proceeding is remanded.

Error and remanded.

JOHNSON, J., concurs in result.