In Re the Care & Custody of McGraw ( 1947 )

The petitioner, Willie Spurlin, claiming to be the father of the illegitimate child whose custody is in controversy, sued out habeas corpus to take that custody from the mother. While he alleges facts which would support the jurisdiction of the juvenile court — see G.S., 110-23, et seq. — he rests his cause of action on the superior right of the father to the custody of his child; and in his appeal from an adverse ruling of the Superior Court, asks adoption of that theory here.

Outside of the statutes which make the writ of habeas corpus available to determine the custody of a child between husband and wife when living separate and apart from each other (G.S., 17-39), or when divorced (G.S.,50-13), and for other special statutory purposes, the use of the writ has been to determine and relieve against illegal restraint; and perhaps upon this principle the use has been enlarged to cover contests between the father (the wife and mother being dead) and grandparents for the custody of his children (In re Hamilton, 182 N.C. 44, 108 S.E. 305; In reTenHoopen, 202 N.C. 223, 162 S.E. 619), in recognition of the father's superior right to the custody of the child; and perhaps other cases where the prima facie right of the legitimate parents to the custody of the child has been interfered with by a stranger. In these and similar cases legitimate children were involved. The statutes above cited refer to children born to married persons and have no application to the case at bar.

In Shelton's case, 203 N.C. 75, 164 S.E. 332, where the controversy was between the mother of an illegitimate child and parties to an invalid adoption, Justice Connor, speaking for the Court, said:

"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 custody of the child, even though there be others who are more suitable," citing Ashby v. Page, 106 N.C. 328, 11 S.E. 283.

To the same effect is In re Jones, 153 N.C. 312, 69 S.E. 217, in which case Justice Hoke, writing the opinion and speaking of the right of legitimate parents, says:

"In the case of illegitimate children this same prima facie right exists, perhaps to a lesser degree, in the mother," citing Ashby v. Page, supra, and Mitchell v. Mitchell, 67 N.C. 307.

It is easy to see why the policy of the law, in its development from both circumstance and necessity, has not thus far conferred the superior right of custody on the non-legitimate father of a bastard child, at least while the latter remains nullius filius. We have not been presented with convincing authority to sustain the jurisdiction of the Superior Court in behalf of the petitioner; and we do not feel that the exigency of decision requires us to discuss that of the Juvenile Court.

The appeal is

Dismissed.