In Re Cranford.

• Decision Date: 09 November 1949
• Docket Number: No. 388.,388.
• Citation: 56 S.E.2d 35,231 N.C. 91
• Court: North Carolina Supreme Court
• Parties: In re CRANFORD.

56 S.E.2d 35

231 N.C. 91

In re CRANFORD.

No. 388.

Supreme Court of North Carolina.

Nov. 9, 1949.

Habeas corpus proceeding by the mother of Norman Douglas Cranford to regain his custody from the child's aunt, Mrs. W. O. Marsh.

The Superior Court for Randolph County, Susie Sharp, Special Judge, awarded the custody and control of the child to the aunt, and the mother appealed.

The Supreme Court, Seawell, J., reversed the judgment holding that it would treat the proceeding, under the circumstances, as a special proceeding under the amended statute, that the mother had not abandoned the child and that she was entitled to its custody.

[COPYRIGHT MATERIAL OMITTED.]

The petitioner brought a habeas corpus proceeding for the purpose of regaining the custody of her illegitimate child whom she alleges she had entrusted to the care of her aunt, Mrs. W. O. Marsh. Shortly after the birth of the child she came to live in the home of her aunt and lived there with the child until her marriage to a person not the father of her child. She then left to live elsewhere, leaving the child in the custody of the aunt, as petitioner says, to remain while she was good to him, but as respondent says, as an unqualified surrender of custody and control, declaring that she would make no further claim.

There was no adoption.

The matter came in due course to be heard by Judge Sharp, who heard evidence, made a finding of facts in which she found that the mother had abandoned the child by surrendering him to the unqualified custody of the aunt and asserting that she would make no further claim. She further found that the respondent is a woman of good character and is a fit person to have the custody of the child and that her home is a proper and fit place to rear it; that the mother of the child at the present time is a woman of good character and her home is a proper and fit place for the child to visit.

The order provides that the custody and the control of the child be awarded to the respondent and that the petitioner be allowed to visit the child at stated periods which shall not conflict with its school attendance; and that petitioner shall be allowed to have the child visit her on alternate week-ends.

The petitioner excepted to the finding of fact that she had abandoned the child and that it was to the best interest of the child that he remain in custody of the respondent; and to other findings on which the award of custody was based; excepted to the order, and appealed.

Spence, Smith & Walker, Asheboro, for petitioner, appellant.

Miller & Moser, Asheboro, for respondent, appellee.

SEAWELL, Justice.

The petitioner, having suffered an adverse decision below, now makes an ore tenus objection to the jurisdiction of the trial court, and moves to dismiss the proceeding, intending, we understand, to bring her grievance to the Juvenile Court (G.S. §§ 110-21 to-44) as a court having exclusive jurisdiction of the subject matter. This brings up the necessity of clarifying the jurisdiction, in limine, in order to see whether, with procedural propriety, we can reach decision on the merits.

Prior to the creation of the Juvenile Court habeas corpus was the recognized procedure for determining the custody of a child in the factual situation presented in this case, and was in common use. Ashby v. Page, 106 N.C. 328, 11 S.E. 283; Latham v. Ellis, 116 N.C. 30, 20 S.E. 1012; In re Jones, 153 N.C. 312, 69 S.E. 217, 138 Am.St.Rep. 670; Thompson v. Thompson, 72 N.C. 32. Statutory exceptions and practice existing in certain relationships of parties, not obtaining here, did not, of course, affect the procedure.

In the creation of the Juvenile Court the Legislature gave it exclusive jurisdiction of the custody of children in certain categories set out in G.S. §§ 110-21, in 1, 2, 3, order, including delinquency, parental neglect, abandonment, and other conditions detrimental to the welfare of the child. And, by a sweeping addendum in division 3, supra, extended such jurisdiction to all cases where the custody ofchildren is involved, rendering the proceeding by habeas corpus unavailable. In re Coston, 187 N.C. 509, 122 S.E. 183; see In re Ten Hoopen, 202 N.C. 223, 224, 162 S.E. 619. This is thoroughly discussed in its relation to habeas corpus in Phipps v. Vannoy, 229 N.C. 629, 50 S.E.2d 906, which see. We may say now, since it is no longer law, that this provision was scarcely germane to the general tenor and purpose of the act, and put the natural rights of the parents who must resort to it in some jeopardy by its social implications, para-mounting the interest of the State.

For this reason (or some other--we need not inquire), there was enacted Chapter 1010, Session Laws of 1949 (to which counsel seem not to have been advertent), making certain amendments to another statute (G.S. § 50-13), which, upon analysis, will be found to apply to the present controversy, and strictly affects the cited provisions of the statute. The amending provision rewrites the first section of G.S. § 50-13, making it read as follows: "Provided, custody of children of parents who have been divorced outside of North Carolina, and controversies respecting the custody of children not provided for by this Section or Section 17-39 of the General Statutes of North Carolina, may be determined in a special proceeding instituted by either of said parents, or by the surviving parent if the other be dead, in the Superior Court of the county where the petitioner, or the respondent or child at the time of filing said petition, is a resident."

Examination of G.S. § 50-13 and G.S. § 17-39 discloses that neither of them, before amendment, made any provision for the custody of children under the factual situation or relationships involved in the case before us; and this remedy was open to the petitioner when she mistakenly sued out habeas corpus.

The question arises whether, the remedy by habeas corpus having been...