In re Ten Hoopen's Custody

• Decision Date: 17 February 1932
• Docket Number: 404.
• Citation: 162 S.E. 619,202 N.C. 223
• Parties: In re TEN HOOPEN'S CUSTODY.
• Court: North Carolina Supreme Court

162 S.E. 619

202 N.C. 223

In re TEN HOOPEN'S CUSTODY.

No. 404.

Supreme Court of North Carolina

February 17, 1932

Appeal from Superior Court, Guilford County; Sink, Judge.

Habeas corpus proceeding by Paul E. Ten Hoopen for the custody of Katherine Ten Hoopen, a minor. From a judgment awarding the minor's custody to petitioner, Mrs. E. T. Harmon appeals.

Affirmed.

It is father's legal, as well as moral, duty to provide for his children's maintenance and education.

This is a case heard before his honor, H. Hoyle Sink, Judge, upon writ of habeas corpus, in which the petitioner, Paul E. Ten Hoopen, father of the minor in question, asked that the custody of his child, Katherine Ten Hoopen, a minor child five years of age, be awarded to him; the child being at the time of the issuing of the writ in the custody of the respondent, Mrs. E. T. Harmon, the maternal grandmother of the child, who lives in High Point, N. C.; the petitioner being a resident of the city of Cleveland, state of Ohio where he was transferred by his employer, the Cyclone Fence Company. He formerly owned a home in Charlotte, N. C., where he and his wife and children resided,

The court below found the facts and rendered judgment, as follows: "(a) That the minor, Katherine Ten Hoopen heretofore declared by the court to be in its custody, was left by its mother, Katherine Ten Hoopen, with its maternal grandmother, Mrs. E. T. Harmon, of High Point, N. C., while she (the mother) went to the state of Nevada for the purpose of establishing a residence and obtaining a divorce from the petitioner herein. (b) That the maternal grandmother, Mrs. E T. Harmon, is a woman of the highest character and has the absolute confidence of the court, and is financially and otherwise capable and willing to care for and rear said minor. (c) That the petitioner, Paul E. Ten Hoopen, being the father of the minor, Katherine Ten Hoopen, is able and worthy of the custody of said minor. Wherefore, it is ordered adjudged, and decreed that the custody of the minor, Katherine Ten Hoopen, be awarded to the father, Paul E. Ten Hoopen, upon the following conditions: (1) That the petitioner, Paul E. Ten Hoopen, before receiving the custody of Katherine Ten Hoopen, shall file a bond, to be approved by the clerk of the superior court of Guilford county, with said clerk of the superior court of Guilford county, providing for its forfeiture in the event of the petitioner Paul E. Ten Hoopen's failure to return the minor, Katherine Ten Hoopen to the jurisdiction of this court upon thirty days' notice at any time within the period of three years from this date, and providing further that the petitioner, Paul E. Ten Hoopen, and others in whose custody he may leave said minor, will permit said minor to be returned to High Point, N. C., to be placed in the custody of Mrs. E. T. Harmon, for such part or all of the vacation period beginning fifteen days after the close of her school and to be returned to the residence of the petitioner within fifteen days prior to the opening of the fall term of the school, to which said minor shall go, the child to be at all times in the legal custody of Mrs. E. T. Harmon during her stay in North Carolina, and shall be brought to and from North Carolina at the expense of said Mrs. E. T. Harmon. (2) It is further provided that either parent of said Katherine Ten Hoopen shall be permitted to see the said minor at all reasonable and convenient times during the life of this order regardless of whether she be, for the time being, in the custody of her father, Paul E. Ten Hoopen, or in the temporary custody of her grandmother, Mrs. E. T. Harmon. (3) Pending the filing of the bond as herein provided for, the petitioner being allowed thirty days to file same, and the appeal, if any, to the Supreme Court of North Carolina, the custody of the child is temporarily awarded to Mrs. E. T. Harmon."

The respondent made numerous exceptions and assignments of error and appealed to the Supreme Court.

Gold, York & McAnally and D. H. Parsons, all of High Point, for appellant.

Stancill & Davis, of Charlotte, for appellee-petitioner.

CLARKSON J.

We think the only material exception and assignment of error made by respondent is as follows: "That the Court below overruled the written motion of the Respondent to transfer the hearing and controversy relative to the custody of the minor child to the Juvenile Court of the City of High Point." We do not think this exception and assignment of error on the part of the respondent, the maternal grandmother of the child, can be sustained on the facts of this record. The respondent contends that C. S. § 5039 is applicable. We cannot so hold.

This statute is, in part, as follows: "The superior courts shall have exclusive original jurisdiction of any case of a child less than sixteen years of age residing in or being at the time within their respective districts; *** 3. Who is dependent upon public support or who is destitute, homeless, or abandoned, or whose custody is subject to controversy. When jurisdiction has been obtained in the case of any child, unless a court order shall be issued to the contrary, or unless the child be committed to an institution supported and controlled by the state, it shall continue for the purposes of this article during the minority of the child. The duty shall be constant upon the court to give each child subject to its jurisdiction such oversight and control in the premises as will conduce to the welfare of such child and to the best interests of the state."

The above statute has been so often discussed that we refer to some of the cases: In...