Wilson v. Wilson , 269 N.C. 676 ( 1967 )

153 S.E.2d 349 (1967) 269 N.C. 676

Betty Louise WILSON
v.
Carl O. WILSON, Jr.

No. 295.

Supreme Court of North Carolina.

March 22, 1967.

J. LeVonne Chambers, W. B. Nivens and C. L. Brown, Nivens & Brown, by J. LeVonne Chambers, Charlotte, for plaintiff appellant.

Walter C. Benson, Charlotte, for defendant appellee.

PLESS, Justice:

While it is true that a parent, if a fit and suitable person, is entitled to the custody of his child, it is equally true that where fitness and suitability are absent he loses this right. "Where there are unusual circumstances and the best interest of the child justifies such action, a court may refuse to award custody to either the mother or father and instead award the custody of the child to grandparents or others. There may be occasions where even ``a parent's love must yield to another if after judicial investigation it is found that the best interest of the child is subserved thereby.' But the parent's right, by nature and law, to the custody of minor children should never be denied except for the most cogent reasons as where it is clearly shown to be unqualified." 3 Lee, N.C. Family Law, Sec. 224; Tyner v. Tyner, 206 N.C. 776, 175 S.E. 144; James v. Pretlow, 242 N.C. 102, 86 S.E.2d 759; Holmes v. Sanders, 246 N.C. 200, 97 S.E. 2d 683. In the same work it is said that "This right (of custody) cannot be taken from a parent merely because the court may believe that some third person can give the child better care and greater comforts and protection than the parent, a parent's right to custody of a child being forfeitable only by misconduct or by other facts which substantially affect the child's welfare." See also James v. Pretlow, supra.

Judge Copeland gave patient and full consideration to the evidence; he observed the parties for two days, saw the type of witnesses offered by both and thus had an opportunity to evaluate the situation that cannot be shown by the printed page.

In these days of discouraging and alarming frequency of divorce, the courts have been compelled to give more frequent application to the rule that the welfare of the child is the primary consideration. The welfare or best interest of the child is always to be treated as the paramount consideration, to which even parental love must yield, and wide discretionary power is necessarily vested in the trial court in reaching decisions in particular cases. Griffin v. Griffin, 237 N.C. 404, 75 S.E.2d 133; Walker v. Walker, 224 N.C. 751, 32 S.E.2d 318.

"The welfare of the child in controversies involving custody is the polar star by which the courts must be guided in awarding custody." Thomas v. Thomas, 259 N.C. 461, 130 S.E.2d 871, quoting Kovacs v. Brewer, 245 N.C. 630, 97 S.E.2d 96.

There was ample evidence to support Judge Copeland's findings that the mother and her present husband had an adulterous relationship for many months prior to their marriage during which period he spent a good portion of his time at the home of the plaintiff. This was necessarily in the presence and with the knowledge of her four small children and constituted a degrading situation from which Judge Copeland found that she is not a fit and suitable person to have the care, custody and control of the children.

While the father of the children has not appealed from the order of the lower court, he also is found not to be a fit and suitable person to have their custody.

Under these conditions there was no course left open to the Judge except to place them in the hands of some responsible person or agency. He could not award their custody to either parent, and the record does not show that any relative, or even friend, sought their custody. He had little choice but to make the order he did.

The children are still the wards of the court under the Judge's temporary order. It can, and no doubt will, be changed or modified if and when conditions or suitability have materially changed. Griffin v. Griffin, supra, and cases there cited.

"A decree awarding the custody of minor children determines the present rights of the parties to the contest with respect to such custody, is not permanent in its nature, and is subject to judicial alteration or modification upon a change of circumstances affecting the welfare of the children." Thomas v. Thomas, supra.

The judgment is hereby

Affirmed.