West v. West

• Decision Date: 11 February 1946
• Docket Number: 15800.
• Citation: 36 S.E.2d 856,208 S.C. 1
• Parties: WEST et al. v. WEST (two cases).
• Court: South Carolina Supreme Court

36 S.E.2d 856

208 S.C. 1

WEST et al. v. WEST (two cases).

No. 15800.

Supreme Court of South Carolina

February 11, 1946

Osborne, Butler & Moore, of Spartanburg, for appellant.

Samuel T. Lanham, of Spartanburg, for respondent.

PER CURIAM.

The issue involved in this case is the custody of a fourteen-months-old child, which necessarily encompasses what provision is best for the welfare of the infant involved, the latter being paramount.

This cause was originally instituted in the Children's Court of Spartanburg County by the respondents, the mother and maternal grandmother respectively, against the appellant, the father of the child.

The Children's Court of Spartanburg County, after taking considerable testimony, awarded the custody of the child to the appellant. Thereupon an appeal was made to the Court of Common Pleas for Spartanburg County, and the Judge of that Circuit issued his order requiring a certification of the record before the Children's Court to the Court of Common Pleas; and thereafter, following argument of the contents of this record, the Judge of that Circuit issued his order reversing the order of the Children's Court and awarding the custody of the infant to the respondents herein and in so doing stated: 'Of course this Court is cognizant of the relationship, and will naturally expect that the baby shall live with and be cared for by his Mother. But it is expected that the Mother, without the benefit of a husband's counsel, cooperation and assistance, should seek the advice and counsel of her Mother, and be guided by it, and that Mrs. Livingston will give supervisory care and attention to her daughter and grandson.'

There was an appeal to this Court from the order of the Circuit Court awarding the custody of the child as aforesaid and pending the appeal to this Court, and on motion of the appellant herein, when it was brought to the attention of the Court that the infant involved, Toby Edward West, had never been made a party to the proceeding nor had any hearing with respect to his interest and welfare, and so that full opportunity would be afforded for the interests of said infant to be adequately and completely considered by the Court, to the end that the welfare of the infant could be properly adjudicated, irrespective of any strictly legal right of any of the parties to the action to the custody of the infant, it was ordered that the infant be produced before the Court at the hearing of the appeal, and that such further return or other pleading, together with any supporting affidavits or exhibits, as the respondents intended to rely upon be made a part of the record; that such proceeding be consolidated with the appeal then pending and heard at the same time; and that Mrs. Kate B. Helms, Chief of the Child Welfare Division of the State Department of Public Welfare be appointed as guardian ad litem for the said infant and make her return and recommendation to this Court as to the best interest of the infant, all of which was done. Therefore, the Honorable Thomas S. Sease, Resident Circuit Judge, who passed the order awarding the custody to the respondents herein, did not have before him all of the information that this Court has.

The most recent case that we have relating to the custody of an infant is Koon v. Koon et al., 203 S.C. 556, 28 S.E.2d 89, 90. In an excellent opinion, written by Mr Justice Fishburne and concurred in by all members of the Court hearing that case, it is stated: 'The rule that obtains in this and practically all jurisdictions at the present day is, that the well-being of the child is to be regarded more than the technical legal rights of the parties so that, following this rule, it is generally held that the...