Ex Parte Jones.

• Decision Date: 26 October 1910
• Citation: 153 N.C. 312,69 S.E. 217
• Parties: Ex parte JONES.
• Court: North Carolina Supreme Court

69 S.E. 217

(153 N.C. 312)

Ex parte JONES.

Supreme Court of North Carolina.

Oct. 26, 1910.

1. Habeas Corpus (§ 99^*) — Custody of Child—Who Entitled.

On habeas corpus for the custody of an infant, if the parents are living together lawfully, they have prima facie the right to control and custody.

[Ed. Note.—For other cases, see Habeas Corpus, Cent. Dig. § 84; Dec. Dig. § 99;* Parent and Child, Cent. Dig. §§ 4-82.']

2. Habeas Corpus (§ 99*)—Custody of Child —Right To.

On habeas corpus for the custody of an illegitimate child, the mother has a prima facie right to control and custody.

[Ed. Note.—For other cases, see Habeas Corpus, Cent. Dig. § 84; Dec. Dig. § 99;* Parent and Child, Cent. Dig. §§ 4-32; Bastards, Cent. Dig. §§ 19, 20.J

3. Habeas Corpus (§ 99*)—Custody of Child —Who Entitled.

In awarding custody of a child, its welfare is of controlling influence, subject to the paramount right of the parents to control and custody, if, being of good character, they have the capacity and disposition to care for and rear the child properly in the walk of life in which they are placed.

[Ed. Note.—For other cases, see Habeas Corpus, Cent. Dig. § 84; Dec. Dig. §99;* Parent and Child, Cent. Dig. §§ 4-32.]

4. Habeas Corpus (§ 99*)—Custody of Child —Rights of Parent.

Where, on habeas corpus for the custody of an illegitimate child, it appeared that the petitioning mother had not abandoned the child, and that the mother and her husband were "respectable" and capable of rearing and providing for the child, it was improper to deny her the custody, though the respondents, uncle and aunt of petitioner, were reputable people, and had well cared for the child.

[Ed. Note.—For other cases, see Habeas Corpus, Cent. Dig. § 84; Doc. Diff. § 99;* Parent and Child, Cent. Dig. §§ 4-32.]

5. Habeas Corpus (§ 25*)—Subjects—Custody of Children.

The rightful and proper placing of infants can be determined on habeas corpus.

[Ed. Note.—For other cases, see Habeas Corpus, Cent. Dig. § 21; Dec. Dig. § 25.*]

Appeal from Superior Court, Vance County; Cooke, Judge.

In the matter of habeas corpus of Mary Jane Jones. From the decree, petitioner, Nancy Green, appeals. Reversed.

The petition was filed by Nannie Green, mother of the child, who was and has been for some time in the care and custody of respondents. Prince Jones, uncle of petitioner, and his wife, Laura. On the hearing the court found as facts among other things: That the child was an illegitimate child of the petitioner, Nancy Green, and would be nine years of age in May, 1910. That she was being properly and well cared for by respondents, who are reputable colored people: Prince Jones being a minister, having a church under his charge, owning about 50 acres of land which he has bought, but not fully paid for. That Laura Jones, his wife, is a reputable colored woman, and that she and her husband are capable of raising and properly providing for the child, and are greatly attached to it. That the child has been and is being well and properly cared for and maintained, and she has become greatly attached to the said Prince Jones and his wife, and says she does not wish to leave them. It appears from examination of the child that she has been sent to school and to Sunday School, and is now well advanced in her studies for one of her age and condition in life. That Nannie Jones, the mother, with her children had been living for some time as a member of the family with Prince Jones and his wife, paying no board, but working as a member of the family until about five years ago, when she married Simon Green, and went to live with him. That Simon Green and his wife are respectable colored people, and are capable of rearing and providing for the child. That they have from the date of their marriage from time to time and repeatedly applied to respondents to let them have the child, but they declined to do so. Upon one occasion they attempted to take the child away from them by force, and, when they had the child in the buggy, the child screamed, and the wife of Prince Jones took her out of the buggy. Upon these the controlling facts relevant to the inquiry, the court entered judgment as follows: "(a) That the child is not illegally restrained of its liberty, (b) That the welfare and interests of the child would best be promoted by permitting her to remain with respondents, (c) And the court doth adjudge and decree that the said Prince Jones and his wife, Laura Jones, are entitled to the care and custody of said Mary Jane Jones until she attains the age of 15 years, at which time she may select between the petitioner and the respondents; but the court doth further adjudge that petitioner and her husband shall have the right at all proper "hours to visit the child, and that child shall be permitted to visit them whenever she should so desire." Petitioner excepted and appealed.

T. T. Hicks, for appellant.

A. C. Zollicoffer, for respondents.

HOKE, J. (after stating the facts as above). In hearings of this character on habeas corpus, the parents of a child who are living together as lawful man and wife have prima facie the right to the control and custody of their infant children. When divorced, the right to the children and ther placing is more usually dealt with in the decree, and where they live apart, without being divorced, questions concerning the disposition of their offspring must be decided under the provisions of Revisal 1905, § 1853, to theaffect: "The court or judge, on the return of such writ, may award the charge or custody of the child or children so brought before it either to the husband or to the wife, for such time, under such regulations, and with such provisions and directions as will, in the opinion of such court or judge, best promote the interest and welfare of the children. At any time after the making of such orders the court or judge may, on good cause shown, annul, vary or modify the same." In the case of illegitimate children, this same prima facie right exists perhaps to a lesser degree in the mother, and has been recognized in several decisions of the court where she has evinced a capacity and disposition to properly care for her children. Ashby v. Page, 106 N. C. 328, 11 S. E. 283; Mitchell v. Mitchell, 67 N. C. 307. True, we have held and the ruling is in accord with enlightened and well considered cases in other jurisdictions that the welfare of the child is the cardinal influence, and should not infrequently be allowed as controlling. Speaking to this question in a concurring opinion in Parker's Case, 144 N. C. 173, 56 S. E. 879, the writer said: "The best interest of the child is being given more and more prominence in cases of this cnaracter and on especial facts has been made the paramount and controlling feature in well considered decisions"—citing Bryan v. Lyon, 104 Ind. 227, 3 N. E. 880, 54 Am. Rep. 309; In re Welsh, 74 N. Y. 299; Kelsey v. Green, 69 Conn. 291, 37 Atl. 679, 38 L. R. A. 471. But, while this principle may be taken as accepted, it should be applied in reference to the paramount right of a child's parents to have the control and custody of their children, whenever, being of good character, they have the capacity and disposition to care for and rear them properly in the walk of life in which they are placed—a right growing out of the parent's duty to provide for their helpless offspring, not only enforceable as a police regulation, but grounded in the strongest and most enduring affections of the human heart. A substantial right, therefore, not to be forfeited or ignored except in some way or for some reason established or recognized by the law of the land.

A most impressive illustration of the principle and its proper application is afforded in 1 he recent case of Newsome v. Bunch, 144 N. C. 15, 56 S. E. 509. In that case the child, on the death of its mother, and at the age of five months, had been left by the father with...