In Re Fain

WALKER, J., concurring; CLARK, C. J., dissenting. The petitioner is the father of W. Mercer Fain, (791) Jr., born 10 February, 1915, and now in the custody of the respondent, C. M. Wofford, who was the father of the child's mother, which said mother died on 1 March, 1916.

Upon the hearing before his Honor, Judge Long, the custody of the child was awarded to the two grandmothers, six months to each. The evidence and findings of fact show that the petitioner separated from his wife before her death and that he had a serious disagreement with his father-in-law, the respondent. There is no evidence that the petitioner intended to abandon his child and there is no evidence or finding of fact that he is a man of bad character and unsuitable to have the care of his infant child. On the contrary, it appears to be uncontradicted that he lives with his parents, who are people of good character and well-to-do financially; that he is well able financially to care for the child, and that his mother, Mrs. Fain, has agreed to rear the child for her son. His Honor finds as a fact that Mrs. Fain is a woman of most excellent character, and awards the custody of the child to her for six months of the year. It is true, in matters of this character the welfare of the child is the chief consideration of the court, but the father has certain natural rights which the courts have always respected. The fact that he had a difficulty with his father-in-law and did not live with his wife at the time of her death does not take away from him the ordinary right of a father to the care and custody of his child.

In Latham v. Ellis, 116 N.C. 30, a case very similar to this, the Court said: "In North Carolina the father has always been entitled to the custody of his children against the claims of any one except those to whom he may have committed their custody and tuition by deed (sec. 1562 of the Code); or unless his is found to be unfit to keep their charge and custody by reason of his brutal treatment of them or his reckless neglect of their welfare and interest, when their custody will be committed to some proper person on application to the courts."

This question is fully discussed by Mr. Justice Walker in Newsome v.Bunch, 144 N.C. 15, and by Mr. Justice Hoke in the case of Mary Jane Jones,153 N.C. 312, and the right of the father to the custody of his child is recognized and sustained. Upon the findings of fact and the evidence in the case, we think his Honor erred in denying the right of the father to the custody of the child. If it can be shown that the father is unsuitable and incapable of taking care of his child, then those who are interested in it may apply to the courts to change its custodian.

In the record before us there is no finding of fact and no evidence which justifies the court in denying the legal rights of the father.

(792) The cause is remanded with instructions to enter judgment in accordance with this opinion.

Reversed.