Newsome v. Bunch

• Decision Date: 19 February 1907
• Citation: 144 N.C. 15,56 S.E. 509
• Court: North Carolina Supreme Court
• Parties: NEWSOME. v. BUNCH.

144 N.C. 15

56 S.E. 509

NEWSOME.

v.BUNCH.

Supreme Court of North Carolina.

Feb. 19, 1907.

Parent and Child—Custody—Right op Father.

A father is entitled to the custody of his child as against the claim of its grandparents, where both are equally qualified in every respect as fit and proper persons with whom to intrust the care and custody of the child, and the father has in no way abandoned the child to its grandparents.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 37, Parent and Child, §§ 13, 14.]

Appeal from Superior Court; Chowan County; Ward, Judge.

Habeas corpus by A. K. Newsome against Q. T. Bunch to obtain the custody of a child. From a judgment for petitioner, respondent appeals. Affirmed.

W. M. Bond, for appellant.

N. G. Gulley and W. S. Prlvatt, for appellee.

WALKER, J. This case, was before us at the last term and will be found reported in 142 N. C. 19, 54 S. E. 785, where the facts, not herein mentioned, are stated. We there directed certain additional findings to be made. His honor has found in compliance with our order that the child was not abandoned by its father (the petitioner) to its grandparents (the respondents), and that the interests and welfare of the child will not be materially prejudiced by its restoration to the petitioner. The father is, in the first instance, entitled to the custody of his child. But this rule of the common law has more recently been relaxed, and it has been said that, where the custody of children is the subject of dispute between different claimants, the legal rights of parents and guardians will be respected by the courts as being founded in nature and wisdom, and essential to the virtue and happiness of society, still, the welfare of the infants themselves is the polar star by which the courts are to be guided to a right conclusion, and therefore they may, within certain limits, exercise a sound dlcretion for the benefit of the child and in some cases will order it into the custody of a third person for good and sufficient reasons. In re Lewis, 88 N. C. 31; Hurd on Habeas Corpus, 528 and 529; Tyler on Infancy, 276 and 277; Schouler on Domestic Relations, § 428; 2 Kent's Com. 205. But, as a general rule, and at the common law, the father has the paramount right to the control and custody of his children, as against the world; this right springing necessarily from, and being incident to, the father's duty to provide for their protection, maintenance, and education. 21 A. & E. Enc. 1036; 1 Blackstone (Sharswood) 452 and note 10, where the authorities are collected. This right of the father continues to exist until the child is enfranchised by arriving at years of discretion "when the empire of the father gives place to the empire of reason." 1 Blk. 453. It appears in this case that the petitioner and the respondents are equally qualified In every respect as fit and proper persons with whom to intrust the care and custody of the child, and further, it is found as a fact that the father has, in no way, surrendered his natural and preferred right to such custody. Under these circumstances, we are unable to see why the petitioner is not entitled to have the custody of the child awarded to him, as was done by the order of the court below. It would seem that the case comes directly and clearly within the decision of this court in Latham v. Ellis, ...