Atkinson v. Downing

• Decision Date: 27 March 1918
• Docket Number: 301.
• Citation: 95 S.E. 487,175 N.C. 244
• Parties: ATKINSON v. DOWNING.
• Court: North Carolina Supreme Court

95 S.E. 487

175 N.C. 244

ATKINSON v. DOWNING.

No. 301.

Supreme Court of North Carolina

March 27, 1918

Appeal from Superior Court, Bladen County; Bond, Judge.

Petition by E. B. Atkinson against J. H. Downing, in habeas corpus to recover the possession of plaintiff's minor daughter. From a judgment awarding the child to defendant, plaintiff appeals. Affirmed.

Parents have prima facie a natural and substantive right to control and custody of their infant children, to be denied only for good cause and in the interests of the child.

The petitioner was the father of the child and the respondent was the maternal grandfather. The court heard the testimony and made findings of fact thereon in part as follows:

"(1) That petitioner is the father of the child, and the child is now about 11 years of age.

(2) That the mother of the child died at the home of the mother's father 7 or 8 years ago. That several months prior to the death of his daughter, at her request, the respondent, her father, took her to his house, and at his expense took care of her, furnished medical attention, bore all the expenses of same, and paid the costs of her funeral. That the petitioner has never paid any part of the same to the respondent.

(3) That a very short time before the death of the mother of the said child, she, in the presence of her husband, she being sick at the time, stated that she expressly desired that the grandparents of the child should keep it to raise, and, in the presence of the petitioner, his wife stated that her husband had not properly cared for and provided for her. That she had to die at 22 years of age, and that his neglect of her was the cause of it.

(4) That respondent, Downing, has sufficient means to take good care of said child, is of good character, and is fond of said child, and anxious to do all that is necessary to give said child proper attention. That he owns about 1,000 acres of land in Bladen county. That the father of said child, with the exception of a few small gifts, has done nothing to raise said child since her mother's death, or to meet any of the expenses of the child's being raised at this time.

(5) That the petitioner has married a second wife. He owns no home, and has no property, real or personal. That he works for wages, and did not properly provide for his first wife when she was living. That said child has first cousins of her age to associate with where she now lives at her grandfather's. That said girl has been sent to school by the grandfather, and can now read and write fairly well for her age. That she goes to Sunday School, and is visited and attended to by her aunts. That a schoolhouse is soon to be erected near enough to the home of the grandfather to furnish better education facilities than heretofore. That there is no evidence tending to show that said wife wants the girl in her home.

(6) That on this hearing witnesses testified that the general character of the petitioner, father of the girl, is considered good, but by reputation he did not provide properly for his first wife, and the court finds the last of said facts to be true. As to his character the court finds his general reputation is considered good. He behaves himself properly, and is considered a well-behaved man, as to truth and treatment of other people. No witness testified that his general character is bad, but the witnesses who testified as to his character stated that he had never been considered a thrifty man. The court further finds he neglected his first wife, and has done practically nothing to help raise the child.

(7) The court further finds from the evidence that the petitioner is now working in a knitting mill in the capacity of a machinist, and is getting $2.50 per day for the time he works. That he owns no property, either real or personal. That in the past he has worked at times, and at other times has failed to be employed, and has frequently moved from place to place.

(8) The court further finds that the interests of the said child will be best promoted by letting her live with her grandfather where she has been since she was about 3 or 4 years of age she being now about 11."

The subsequent findings do not materially affect the legal aspects of the controversy. Upon his findings the court entered judgment as follows:

"Upon the foregoing findings of fact, it is adjudged by the court that the bests interests of the child require that she be allowed to stay at her grandfather's, and it is ordered and adjudged by the court that the writ be dismissed, and that said child remain in the custody of her grandfather; that her father be allowed to visit her; and that said father is hereby enjoined and restrained from removing or having said child removed from the custody of her grandfather. It is also adjudged by the court that the costs of this proceeding be paid by the petitioner, E. B. Atkinson."

From this judgment, the petitioner appealed.

J. Alden Lyon, of Elizabethtown, H. L. Lyon, of Whiteville, and A. H. Pait, of Elizabethtown, for appellant.

McLean, Varser & McLean, of Lumberton, for appellee.

HOKE J.

It is fully recognized in this state that parents have prima facie the right to the custody and control of their infant children, a natural and substantive right not to be lightly denied or interfered with, except when the good of the...