Brickell v. Hines
| Decision Date | 03 March 1920 |
| Docket Number | 104. |
| Citation | 102 S.E. 309,179 N.C. 254 |
| Parties | BRICKELL v. HINES. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Wayne County; Daniels, Judge.
Habeas corpus proceedings by Mrs. George G. Brickell against Mrs Wade H. Hines. Judgment for petitioner, and respondent excepts and appeals. Affirmed.
In determining to whose custody infant child will be awarded the welfare of the child is entitled to full consideration and on especial facts may become the controlling consideration.
Habeas corpus proceedings to determine as to care and custody of an infant child, now 3 1/2 years of age, heard, on petition of the parents, before his honor, F. A. Daniels, Judge, at Chambers in Goldsboro, N. C., on 20th day of September, 1918. It appeared that the child, in 1916, when one month of age had been adopted by respondents, on proceedings had in the hustings court of the city of Richmond, in 1916, the feme plaintiff, not then married, joining in the petition for adoption, and had since been cared for by respondents, now domiciled in North Carolina, petitioners being also resident and domiciled here. There was evidence tending to show that, under circumstances now existent, the welfare of the child would be best subserved by awarding the same to the petitioners, its parents. The court, having so found, there was judgment, awarding the child to the care and custody of petitioners, and respondents excepted and appealed.
Hood & Hood, of Goldsboro, for appellants.
J. Faison Thomson, of Goldsboro, for appellees.
It has been held in several recent decisions, where the question was directly considered, that parents have prima facie the right to the custody and control of their infant children, and that the same, being a natural and substantive right, may not be lightly denied or interfered with by action of the courts. It is further held in these and other cases that this right of the parents is not universal and absolute, but that the same may be modified and disregarded when it is made to appear that the welfare of the child clearly requires it. Ex parte Warren, 178 N.C. 43, 100 S.E. 76; In re Means, 176 N.C. 307, 97 S.E. 39; Atkinson v. Downing, 175 N.C 244, 95 S.E. 487. The last case citing, among others, In re Fain, 172 N.C. 790, 90 S.E. 928; In re Mary Jane Jones, 153 N.C. 312, 69 S.E. 217, 138 Am. St. Rep. 670; Newsome v. Bunch, 144 N.C. 15, 56 S.E. 509; In re Alderman, 157 N.C. 507, 73 S.E. 126, 39 L. R. A. (N. S.) 988; In re Turner, 151 N.C. 474, 66 S.E. 431; In re Samuel Parker, 144 N.C. 170, 56 S.E....
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In re Hamilton
...been said by this court in the cases above cited that the parent has the preferred right of custody, and for cogent reasons, and in Brickell v. Hines, supra, Justice Hoke, that this right, "being a natural and substantive right, may not be lightly denied or interfered with by action of the ......
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Ex parte Shelton
... ... custody and control of their child or children during ... infancy. Thus in Brickell v. Hines, 179 N.C. 254, ... 102 S.E. 309, 310, Hoke, J., says: "It has been held in ... several recent decisions, where the question was directly ... ...
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In re Coston
... ... court judge hearing the cause on appeal as the statute ... provides C. S. §§ 5039-5054. And Brickell v. Hines, ... 179 N.C. 254, 102 S.E. 309, is in support of the general ... principle ... Doubtless, ... if it should be made ... ...
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In re Foster
...cases the courts will enforce, may, however, be forfeited or relinquished by her. The right is not universal or absolute. Brickell v. Hines, 179 N.C. 254, 102 S.E. 309. must yield to the best interest of the child, as determined by the mother, or by the courts. Atkinson v. Downing, 175 N.C.......