Matter of Custody of Rooker , 43 N.C. App. 397 ( 1979 )

258 S.E.2d 828 (1979) 43 N.C. App. 397

In the Matter of The CUSTODY of Theodore Davis ROOKER and Tammy Jo Rooker, Minors.

No. 799DC121.

Court of Appeals of North Carolina.

October 16, 1979.

Perry, Kittrell, Blackburn & Blackburn by George T. Blackburn, II, Henderson, for petitioner-appellant.

Banzet & Banzet by Julius Banzet, III, Warrenton, for respondent-appellee.

HILL, Judge.

"A final decree of adoption for life terminates the relationship between the natural parents and the child, and the natural parents are divested of all rights with respect to the child." (Emphasis added.) G.S. 48-23. Rhodes v. Henderson, 14 N.C. App. 404, 188 S.E.2d 565 (1972).

Hence, the position of the petitioner is no greater than that of a stranger to the child. Rhodes v. Henderson, supra.

What right does a stranger have under the provisions of G.S. 50-13.1? This statute states substantially as follows:

Any parent, relative, or other person,. . . claiming the right to custody of a minor child may institute an action or proceeding for the custody of [a minor] child, as hereinafter provided. (Emphasis added.)

The determining factor under North Carolina decisions as to the proper custody of minor children is not that of claim of entitlement by the parties but the welfare of the child. Mathews v. Mathews, 24 N.C. App. 551, 211 S.E.2d 513 (1975). In this case, the children are not living with the original adopting parents (the grandparents), but are living with another person, a stranger in effect. By signing consent to the adoption by the grandparents, the petitioner was rendered a stranger to the blood, but this in no way precludes his right as an "other person" to claim custody.

This is a matter for the lower court to decide based on all the evidence before the court at that time. Therefore, the judgment entered by the court below is vacated and the case is

Remanded.

VAUGHN and ERWIN, JJ., concur.