Ex Parte Turner.

• Decision Date: 15 December 1909
• Citation: 151 N.C. 474,66 S.E. 431
• Court: North Carolina Supreme Court
• Parties: Ex parte TURNER.

(151 N.C. 474)

66 S.E. 431

Ex parte TURNER.

Supreme Court of North Carolina.

Dec. 15, 1909.

Habeas Corpus (§ 99^*)—Custody and Control of Child.

The father has the paramount right to the control and custody of his child, but the court may order the child into the custody of some person other than the father when it seems for the best interest of the child, and where the evidence satisfies the judge that both the father and the mother, who are living apart, are of such a character that the interests of the child are best served by giving a third person the custody, the court can make such an order with provisions therein for the child to spend part of its vacation with each parent and restrictions preventing the removal of the child from the jurisdiction of the court.

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

Appeal from Superior Court, Buncombe County; J. S. Adams, Judge.

Elizabeth Turner applies for a writ of habeas corpus for the possession and custody of Constance E. Turner, a child. From a decree placing the child in the custody of the superintendent of an industrial school, Claudia Turner appeals. Modified and affirmed.

This is an application for a writ of habeas corpus which was issued on the petition of Elizabeth Turner for the possession and custody of Constance Elizabeth Turner, hereinafter designated as Constance, and on the hearing of said petition James B. Turner, father of Constance, came in and asked that he be made one of the petitioners with the original petitioner, Elizabeth Turner, which was granted. After considering all of the evidence adduced by the petitioners, Elizabeth Turner, the mother of Constance, the judge found the following facts:

"(1) James B. Turner and Claudia Turner were married in the year 1901 in the state of Florida.

"(2) In 1902 the said Constance was born to the said James B. Turner and Claudia in Winston, N. C, and the said Constance is now a girl seven years of age.

"(3) James B. Turner and Claudia Turner did not for the last few years live happily together as man and wife, and before the final separation, hereinafter referred to, there had been a temporary separation between them. In the year 1908 the last and final separation occurred, at the time of which the said Claudia Turner, respondent, and the petitioner, James B. Turner, were living in the state of Florida.

"(4) In 1908, when the final separation occurred, the said Constance remained in the custody of Claudia Turner.

"(5) The respondent, Claudia Turner, shortly after the separation, decided to take a business course of study, and while she was taking such course she left Constance with an aunt of the respondent in the city of Atlanta, and after some months the said aunt notified the petitioner, James B. Turner, that he must come and get his child, and, in response to such notice, the petitioner, James B. Turner, did go to Atlanta, Ga., and get the child, and turned her over to his brother, Harold Turner, at that time residing in Statesville, N. C.

"(6) The child, Constance, remained in the possession and custody of the said Harold Turner for about eight months, and in August, 1909, the said Harold Turner delivered the child to the petitioner, Elizabeth Turner, the mother of the petitioner, James B. Turner, In Asheville, N. C, where the child remained until the beginning of these proceedings.

"(7) The respondent, Claudia Turner, consented that the child might be taken from her aunt in Atlanta, and carried to the home of Harold Turner and kept there until she had finished her course in a business college, and was able to provide for the child.

"(8) In September, 1909, the respondent, Claudia Turner, came to Asheville, went to the house of Elizabeth Turner, and took possession of the child, over the protest and resistance of the family of the petitioner, Elizabeth Turner. At the time of this taking possession of the child, the petitioner, James B. Turner, was not in the state of North Carolina, but had left the state with the declared purpose of going to a western state and securing work and of traveling from one place to another, but, upon receiving notice of said proceedings, James B. Turner returned to Asheville, and was present at the hearing of this writ.

"(9) During the continuance of the married life of James B. Turner and Claudia Turner, he inadequately provided for his family, frequently left them alone, and on one occasion they were ejected from a house in Durham, while the said James B. Turner was away in Norfolk, Va.

"(10) James B. Turner is a plumber by trade, but an improvident man, without property and without any fixed place of abode, who travels from place to place, and frequently travels on railroads without paying his fare. He cannot be relied upon to make provision for his child, and is an unfit person to have the custody of her.

"(11) It was contended by the respondent that Claudia Turner had not during the whole of her married life been true to her marriage vows, and there was some evidence adduced before me arousing some suspicions, but not to justify the finding that she is not a virtuous woman.

"(12) Claudia Turner is a hard-working, industrious, and capable woman, 23 years of age. At present she is a stenographer in the office of the Griffing Nursery Company, in the city of Jacksonville, state of Florida, and is earning $15 a week, and is financially capable of providing for and taking care of the child.

"(13) There was much evidence before me that she at present sustains a good character in Jacksonville, Fla.

"(14) The petitioner, Elizabeth Turner, is a very aged lady of good character and limited means, but it is manifest that the feeling between her and Claudia Turner is such that to give her the custody of the child would make it impractical for the mother to ever see the child.

"(15) The feeling existing between the family of the petitioner, Elizabeth Turner, and Claudia Turner, is very bitter.

"(16) In the year 1909 Claudia Turner obtained a divorce in the state of Florida from James B. Turner, but no personal service was made upon the said James B. Turner.

"Upon the foregoing facts I adjudge that the child be placed in the custody of Miss Stevenson, superintendent of the home industrial school at Asheville. This is a high-grade institution for the education of girls and young women, and the said Miss Stevenson is a woman of exalted character and high attainments, and I order that the said Constance be put in the said institution for one year on the following conditions: The petitioner, James B. Turner, shall pay the sum of $80 for the...