La Grenade v. Gordon , 46 N.C. App. 329 ( 1980 )

264 S.E.2d 757 (1980)

Francine LaGRENADE
v.
Dwight GORDON, Betsy Gordon and Robert Gordon.

No. 7921SC903.

Court of Appeals of North Carolina.

April 15, 1980.

House, Blanco & Randolph by Clyde C. Randolph, Jr., and Ronald A. Matamoros, Winston-Salem, for plaintiff-appellant.

Wilson & Redden, by Harold R. Wilson and John W. Sherrill, Winston-Salem, for defendants-appellees.

ERWIN, Judge.

The sole question presented for review is whether plaintiff's complaint states a claim for which relief can be granted. We answer, "Yes."

The father of a minor child is its natural guardian, at common law, and his rights of control over the child is superior to that of the mother, in the absence of a court's contrary determination of custody. Tyner v. Tyner, 206 N.C. 776, 175 S.E. 144 (1934); Patrick v. Bryan, 202 N.C. 62, 162 S.E. 207 (1932). Thus, a father has a right of action against every person who knowingly and wittingly interrupts the relation subsisting between himself and his child or abducting his child away from him or by harboring the child after he has left the house. Howell v. Howell, 162 N.C. 283, 78 S.E. 222 (1913). In Howell v. Howell, supra, plaintiff husband had entered into a contract with his wife and her father that the parties' minor daughter might remain with the wife until the child was six years old. The husband subsequently obtained a divorce but no mention was made of custody of the child. When the child became six, according to plaintiff's complaint, the mother, with the aid of her father, removed the child from the State. The Supreme Court held that a cause of action existed for abduction.

Since the father at common law has the right to control of the child, he cannot be held liable for abduction of the child in this instance unless he has surrendered his common law right. For purposes of a motion to dismiss, the allegations of the complaint are treated as true. Smith v. Ford Motor Co., 289 N.C. 71, 221 S.E.2d 282 (1976). When so viewed, the evidence before us is that defendant Robert Gordon contracted away his common law right to custody of the minor child, but reserved a right to institute a custody action. Thus, plaintiff was vested by contract with legal custody of the child. By contractual agreement, her right was superior to his until a subsequent court determination of the matter of custody, and it was she who had the right to institute a cause of action for abduction, even against him. Accordingly, her complaint states a claim upon which relief can be granted against both her husband and his parents.

The orders entered below are

Reversed.

HEDRICK and ARNOLD, JJ., concur.