Kowalzek, Matter of

• Decision Date: 01 August 1978
• Docket Number: No. 7711DC1027,7711DC1027
• Citation: 246 S.E.2d 45,37 N.C.App. 364
• Parties: In the Matter of Jeffery D. KOWALZEK.
• Court: North Carolina Court of Appeals

Page 45

246 S.E.2d 45

37 N.C.App. 364

In the Matter of Jeffery D. KOWALZEK.

No. 7711DC1027.

Court of Appeals of North Carolina.

Aug. 1, 1978.

J. Douglas Moretz, Sanford, for petitioner-appellant Elizabeth Kowalzek.

Hoyle & Hoyle by J. W. Hoyle, Sanford, for respondents-appellants Liendos.

HEDRICK, Judge.

Petitioner assigns as error the trial court's failure to award her immediate permanent custody of the child. In her brief petitioner contends that the trial court is powerless to award custody of an infant to a third party without finding as a fact that the natural parent is unfit to accept the responsibilities of custody, care and tuition of the child. We disagree.

General Statute § 50-13.2(a) requires the trial court to "award the custody of such child to such person, agency, organization or institution as will, in the opinion of the judge, Best promote the interest and welfare of the child " (emphasis provided). Accordingly, it has been frequently stated that the trial court should be primarily concerned with the welfare of the child in deciding which party before it should be charged with the enormous responsibilities of custodianship of the child. See e. g., Blackley v. Blackley, 285 N.C. 358, 204 S.E.2d 678 (1974); Goodson v. Goodson, 32 N.C.App. 76, 231 S.E.2d 178 (1977). A principle equally well-entrenched in our case law and deeply rooted in the social fabric of our culture is that the natural parent is presumed to be the appropriate custodian of his or her child as opposed to third persons and should not be deprived of custody merely because the child could be better cared for in a material sense. See e. g., Spitzer v. Lewark, 259 N.C. 50, 129 S.E.2d 620 (1963); In re Wehunt, 23 N.C.App. 113, 208 S.E.2d 280 (1974). In Spence v. Durham, 283 N.C. 671, 687, 198 S.E.2d 537, 547 (1973), Justice (now Chief Justice) Sharp quoted approvingly from 2 Nelson, Divorce and Annulment § 15.09 at 226-9 (2d ed. 1961):

It is universally recognized that the mother is the natural custodian of her young. . . . If she is a fit and proper person to have the custody of the children, other things being equal, the mother should be given their custody, in order that the children may not only receive her attention, care, supervision, and kindly advice, but also may have the advantage and benefit of a mother's love and devotion for which there is no substitute.

See also Tucker v. Tucker, 288 N.C. 81, 216 S.E.2d 1 (1975). Harmony of these principles is suggested in the words of Justice Parker in James v. Pretlow, 242 N.C. 102, 104, 86 S.E.2d 759, 761 (1955):

Where one parent is dead, the surviving parent has a natural and legal right to the custody and control of their minor children. This right is not absolute, and it may be interfered with or denied but only for the most substantial and sufficient reasons, and is subject to judicial control only when the interests and welfare of the children clearly require it. (citations omitted).

We conclude that while the fitness of a natural parent is of paramount significance in determining the best interests of the child in custody contests, it is not always determinative in itself. It is entirely possible that a natural parent may be a fit and proper person to care for the child but that all other circumstances dictate that the best interests of the child would be served by placing custody in a third party. Thus, we hold that the trial judge is not required to find a natural parent unfit for custody as a prerequisite to awarding custody to a third person. See In re Morrison, 6 N.C.App. 47, 169 S.E.2d 228 (1969). The petitioner's assignment is overruled.

The respondents contend that the facts found do not support the conclusions that the petitioner is a fit and proper person to have custody of the child and "that it would be for the best interest of Jeffery Kowalzek that his care, custody and control eventually be placed permanently with his natural mother."

In Hunt v. Hunt, 29 N.C.App. 380, 383, 224 S.E.2d 270, 271-2 (1976), we find the following:

". . . when the court fails to find facts so that this Court can determine that the order is adequately supported by competent evidence and the welfare of the child subserved, then the order entered thereon must be vacated and the case remanded for detailed findings of fact."

This Court held that the trial judge's conclusions that the defendant was a fit and proper person and that it was in the best interest of the child to place him in the custody of the defendant were not supported by adequate findings. Similarly, in Montgomery v. Montgomery, 32 N.C.App. 154, 157, 231 S.E.2d 26, 29 (1977), our Court pointed out the duties of the trial judge in a custody proceeding and declared that a custody order must include "findings of fact which sustain the conclusion of law that custody of the child is awarded to the person who will 'best promote the interest and welfare of the child.' " The Court then found the order inadequate to meet the standards prescribed.

In the case before us the trial judge made extensive findings bearing on...