Latham v. Ellis

• Decision Date: 19 February 1895
• Citation: 20 S.E. 1012,116 N.C. 30
• Parties: LATHAM. v. ELLIS.
• Court: North Carolina Supreme Court

20 S.E. 1012

116 N.C. 30

LATHAM.

v.ELLIS.

Supreme Court of North Carolina.

Feb. 19, 1895.

Custody of Child — Rights of Father.

As against the claim of a child's maternal grandparents, and in the absence of any deed to them of the custody of the child, its father, who is morally and financially fitted to care for it, is entitled to the custody.

Appeal from superior court, Beaufort county; Mclver, Judge.

Petition by B. B. Latham for a writ of habeas corpus to obtain the custody of his child from W. R. Ellis. From a judgment for petitioner, defendant appeals. Affirmed.

J. H. Small and W. B. Rodman, for appellant. Chas.

F. Warren and B. B. Nicholson, for appellee.

MONTGOMERY, J. In contests between parents in respect to the custody of their children, whether in suits for divorce or in habeas corpus proceedings, where the husband and wife are living in a state of separation without being divorced, the court or judge before whom the suit or proceedings are heard may award the charge and custody of the child or children to either the husband or the wife, as may appear to be for the best Interest and welfare of the child or children. Code, §§ 1570, 1661. But in the case before us the contest is not between husband and wife, but it is between the father of the child and her maternal grandparents. Under the common law, the father's claim to the custody of his minor children, under all circumstances, was paramount The courts of chancery, however, upon assuming jurisdiction over the persons and estates of infants, overruled the common law in this par-ticular, and have for a long time exercised the right to commit the custody and tuition of infant children to others than the father, in cases where he grossly and recklessly neglects their interests, or is guilty of coarse and brutal treatment of them. Chancellor Kent in 2 Kent, Comm. 205, writes: "The father, and, on his death, the mother, is generally entitled to the custody of the infant children, inasmuch as they are their natural protectors, for maintenance and education. But the courts of justice may, in their sound discretion, and when the morals or safety or interests of the children strongly require it, withdraw the infants from the custody of the father or mother, and place the care and custody of them elsewhere." In North Carolina the father has always been entitled to the custody of his children against the claims of every one except those to whom he may have committed their custody and tuition by deed (Code...