In Re Jones , 14 N.C. App. 334 ( 1972 )

188 S.E.2d 580 (1972) 14 N.C. App. 334

In the Matter of Marguerite Tracey JONES, a minor.

No. 728DC182.

Court of Appeals of North Carolina.

May 24, 1972.

Connor & Vickory, by C. Branson Vickory, Mount Oliver, for petitioner appellant.

Bland & Wood, by W. Powell Bland, Goldsboro, for respondent appellee.

GRAHAM, Judge.

It has been noted often that a trial judge is probably faced with no more difficult task than that of finding the correct answer when called upon to determine the custody of a child. "Nearly always any decision he makes will produce heartaches." In re Gibbons, 245 N.C. 24, 95 S.E.2d 85.

Respondents have lovingly provided for this child's every need while her care has been entrusted to them. She undoubtedly loves them and would be happy and secure in their permanent custody. The temptation is great to leave His Honor's judgment undisturbed.

On the other hand, there is nothing in the evidence to suggest that the mother does not also love the child or that the child's love and affection for her mother does not, or will not in the future, equal that which she has for respondents. Our attention is called to the fact the mother relinquished possession of the child to respondents when the child was only a few months old. But this act should not be viewed as a rejection of the child by her mother. At that time, the mother was young and still in school. She regarded it important that she continue her education and establish a home where she could adequately care for her child. In our opinion, placing the child with Mr. and Mrs. Jones under these circumstances does not illustrate a lack of love for the child or a lack of concern by the child's mother for her welfare. Rather, it shows commendable judgment on the part of a 17-year-old unmarried girl facing maternal responsibilities before she was prepared for them.

The mother now has a stable home. The findings of the trial court establish that she and her husband are suitable and fit persons. There is no evidence which would support contrary findings. Indeed, the suitability of the mother for custody of the child is not disputed. Under these circumstances, feme petitioner, as the natural mother of the child, is entitled to her custody and the trial court erred in failing to enter an order accordingly.

It is well settled that parents, including the mother of an illegitimate child, have the legal right to have the custody of their children unless clear and cogent reasons exist for denying them this right. 3 Lee, N.C. Family Law, Custody of Children, § 224. "This right is not absolute, and it may be interfered with or denied but only for the most substantial and sufficient reasons, and is subject to judicial control only when the interests and welfare of the children clearly require it." James v. Pretlow, 242 N.C. 102, 104, 86 S.E.2d 759, 761.

The case of In re Shelton, 203 N.C. 75, 164 S.E. 332, presented a situation analogous to the one at hand. There, the mother took her illegitimate son to live with respondents. The mother left after six months, leaving her child with respondents. The mother thereafter married, established a home, and sought custody. The trial court concluded that it was in the best interest of the child to remain in the home of respondents and that respondents were better prepared to care for, educate and maintain said child. The Supreme Court reversed the judgment and ordered custody awarded to petitioner. In doing so the court stated: "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."

The case of In re Cranford, 231 N.C. 91, 56 S.E.2d 35, is also similar. There, petitioner went with her illegitimate child to live with her aunt. Thereafter, petitioner married and moved, but left the child with her aunt, asserting, according to the aunt, that she waived right to further claim to the child. The trial court found that the mother and aunt were of good character and that both homes were fit and proper places for the child. Custody was awarded to the aunt. The Supreme Court reversed, holding that the mother was entitled to custody as a matter of law, even though in entrusting her child to the custody of her aunt she may have stated that she waived right to further claim. See also Latham v. Ellis, 116 N.C. 30, 20 S.E. 1012.

In Cranford, Justice Seawell, speaking for the court, made a statement which appears particularly applicable here:

"There is nothing that tears at the heart more pathetically than separation from a child over whom one has watched, has cared for and loved during the years until it has become a part of the very life; but the natural right of a parent, whose unfitness has not been shown, to the custody of a child given to it by a higher power is fundamental, intimately concerned with the integrity of the oldest and most sacred human institution, the home, the family; and we dare not say upon the evidence and findings before us that social considerations or the superior suitability of another custodian should be of such paramount consideration as to defeat that right." 231 N.C. at 95, 56 S.E.2d at 39.

It is apparent in the instant case that the trial judge was of the opinion the interest and welfare of the child would best be promoted by awarding her custody to respondents. G.S. § 50-13.2. Were this a contest between persons equally entitled to the child's custody, this exercise of discretion by the court would be sustained. However, there has been no adoption by respondents and they have no legal right to possession of the child. In re Shelton, supra; In re Cranford, supra.

The law presumes that the best interest of a child will be served by committing it to the custody of a parent, when the parent is a suitable person. In re Hughes, 254 N.C. 434, 119 S.E.2d 189. This presumption is not overcome merely by showing 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. 3 Lee, N.C. Family Law, Custody of Children, § 224.

We conclude that the child's natural mother is entitled to her custody, no facts having been shown which would overcome the presumption that this would be in the best interest of the child.

Reversed.

MORRIS and VAUGHN, JJ., concur.