State v. Hellams

There is a diversity of opinion among the authorities on the question of whether a father should be relieved of criminal responsibility for failing to support his minor, dependent children where the mother, without just cause or excuse, takes the children away from a suitable home provided by the father and keeps them in custody against his wishes. 39 Am. Jur., page 765; Annotation 23 A.L.R., page 864. If this question were an open one in this State, I would unhesitatingly adopt the view that the father is not relieved of criminal responsibility to support his child because it is in the custody of its mother who refuses to live with him. If the children are improperly detained by the mother, I think the father should resort to appropriate legal proceedings to have the right of custody determined. I am in full accord with the following statement, quoted with approval in Statev. Washnesky,... Minn., ..., 246 N.W., 366: "The children are not responsible for the unfortunate differences which have caused the estrangement and separation of the parents and ought not to suffer therefrom. Their rights do not depend upon the degree of culpability of one or the other parent, and their needs must be provided for whether the existing conditions have been brought about by the fault of one or the other or of both parents".

1. The contrary view seems to rest upon the early common law rule that the father was entitled to the custody of his children and his duty to support them was based largely upon this right to their custody and control. In Clardy v.Ford, 203 S.C. 44, 26 S.E.2d 20, the Court said: "At the common law the primary right to the custody of a child is in the father, since the law requires him to maintain and support the child". But the rigor of the common law rule has been modified by numerous decisions of this Court and was finally abrogated by Statute (Section 8638 of the 1942 Code). It is now well established in this State that while the legal and moral rights of the parents will be regarded, the paramount consideration of the Court is the welfare of the child.

In Koon v. Koon et al., 203 S.C. 556,28 S.E.2d 89, the Court said: "The rule that obtains in this and practically all jurisdictions at the present day is, that the well-being of the child is to be regarded more than the technical legal rights of the parties, so that, following this rule, it is generally held that the child will not be delivered to the custody of either parent where it is not to its best interest. The right of the parent is not absolute and unconditional. The primary consideration for the guidance of the Court is what is best for the child itself".

In Campbell v. Campbell et al., 200 S.C. 67,20 S.E.2d 237, the Court said: "The legal liability of the father to support his infant child remains as well after as before a divorce or separation". I think the authorities will show that there has been an extensive repudiation of the view that the duty to support a child is correlative with the right to its custody and services. On account of their tender years, their inability to provide for themselves, the importance to the State that they should be clothed, fed and nourished, the question of the maintenance and support of the children is a subject in which the State has a peculiar and vital interest.

The innocent child should not suffer because neither parent sees fit to have the right to its custody determined by the Courts. The wisdom of this view is illustrated in this particular case where it is shown that habeas corpus proceedings were instituted by appellant for the custody of these children, but he chose not to press the matter to a final conclusion, and now seeks to avoid the responsibility of supporting these children on the ground that he does not have custody of them.

2. However, in so far as criminal responsibility is concerned, the decisions cited by Mr. Chief Justice Baker clearly show that this Court is definitely committed to the view contrary to that entertained by the distinguished trial Judge. The rule adopted by these decisions is so well established that any correction, particularly in view of the fact that the construction of a criminal statute is involved, should now be made by the General Assembly. I assume that in a civil case the Court would not be bound to follow the foregoing rule which under our decisions must be adhered to in criminal prosecutions for non-support, although I see no reason for making a distinction because of the nature of the proceeding involved.

3. The foregoing views are expressed on the assumption that the children of appellant are improperly detained by the mother. The correctness of this assumption, of course, is an issue to be passed upon by the jury. The testimony in this case is conflicting on the question of whether appellant's wife was without just cause or excuse in leaving the home provided by him and taking the children with her. The trial Judge, I think, properly submitted this question to the jury.

For the reasons stated, I concur in the opinion of the Chief Justice.

MESSRS. ASSOCIATE JUSTICE FISHBURNE and STUKES concur.