Roberts v. Short

169 S.E.2d 910 (1969)

6 N.C. App. 419

William E. ROBERTS, Beulah C. Roberts, and Dianne Roberts Short, a minor, appearing herein by her next friend William E. Roberts v. Walter Vance SHORT, Myrtle Short and Johnny Short.

No. 699DC460.

Court of Appeals of North Carolina.

October 22, 1969.

*911 Bobby W. Rogers, Henderson, for plaintiff appellants.

James C. Cooper, Jr., Henderson, for defendant appellees.

GRAHAM, Judge.

By stipulation during the hearing, the mother abandoned any claim she may *912 have had to the custody of her daughter. It then followed that the father alone had the natural and legal right to the custody of the child unless for substantial and sufficient reasons it was determined that the interest and welfare of the child required that he be denied that right. Wilson v. Wilson, 269 N.C. 676, 153 S.E.2d 349; Holmes v. Sanders, 246 N.C. 200, 97 S.E.2d 683; James v. Pretlow, 242 N.C. 102, 86 S.E.2d 759; Tyner v. Tyner, 206 N.C. 776, 175 S.E. 144. "* * * [T]he 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 discretion 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." Tyner v. Tyner, supra, at 779, 175 S.E. at 146.

We fail to see where any good and sufficient reasons exist in this case for denying the father his natural and legal right to the custody of his daughter. It is true that there is evidence in the record before us that would tend to indicate that the father is not an exemplary parent. Such evidence is not unusual in vigorously contested custody cases. There is also evidence, however, to show that the father is a man of good character and temperament; that he is experienced in caring for his child; and that he is a hard and regular worker who supports his family. His love for his daughter and his concern for her welfare are beyond question. He has made arrangements to live with the child in his parents' home. The home is modest, and as contended by the plaintiffs, it is crowded. The evidence, however, does not show it to be inadequate. The defendant's mother and married sister will assist in caring for the child. They are both experienced in caring for children and his mother was in fact licensed by the Virginia Welfare Department to do so.

The plaintiff grandparents strongly contend that even if the father is a fit and suitable person for custody, the child's welfare would best be served by placing her custody with them. The evidence does not compel any such finding, nor in our opinion would it support such a finding. The total testimony of Mr. Roberts as it appears in the record is as follows:

"He came to my house when Beulah was in the hospital and he was drinking. I saw the baby with blood running out of a scar. I have lost a leg. I do not have high blood pressure."

The extent of Mrs. Roberts' testimony was that she had seen her son-in-law spank and hurt the child; she and her husband once signed a note for him; he drinks and she has seen him under the influence two or three times. The only statement having any bearing on her ability to care for the minor child is: "My health is fine." The only other witness for the plaintiffs was the child's mother. Her testimony consisted entirely of accusations against her husband plus a few admissions of her own misconduct. The record appears to us to be completely devoid of any information concerning the Roberts home, or the plans they have for looking after the child should she become their responsibility. The testimony of the defendant father suggests that at one time Mrs. Roberts operated a beauty shop in her home. There was no evidence offered as to the present employment of either Mr. or Mrs. Roberts, or whether either or both of them were at home during the day.

It may be inferred from the record that the child's mother intends to live with the Roberts and would be the one caring for the child should her custody be awarded to them. In this connection it should be noted that the court found numerous facts relating to misconduct on the part of the mother and concluded that she was not a fit, suitable and proper person to have custody of her daughter. The evidence fully supports these findings. Certainly it would not be in the best interest of the child to be placed permanently in the same home with the unsuitable mother and perhaps to a large *913 extent come under her continued control and influence.

The question of custody is one addressed to the trial court and its decision will be upheld if supported by competent evidence. Hinkle v. Hinkle, 266 N.C. 189, 146 S.E.2d 73; In re McCraw Children, 3 N.C.App. 390, 165 S.E.2d 1. Judge Banzet heard testimony in this case for two days. He observed the parties and witnesses and had an opportunity to evaluate their testimony first hand. In our opinion the evidence fully supports his findings and his judgment will therefore not be disturbed.

Affirmed.

CAMPBELL and PARKER, JJ., concur.