Thomas v. Pickard

195 S.E.2d 339 (1973)

18 N.C. App. 1

Remis THOMAS and wife, Naomi Fuquay Thomas v. William David PICKARD.

No. 7311DC137.

Court of Appeals of North Carolina.

April 11, 1973.

*342 Pittman, Staton & Betts, by William W. Staton and R. Michael Jones, Sanford, for plaintiffs.

Harold W. Gavin, Sanford, for defendant.

BROCK, Judge.

As a general rule at common law and under our own decisions, parents have the legal right to the custody of their children. Shackleford v. Casey, 268 N.C. 349, 150 S.E.2d 513. "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." James v. Pretlow, 242 N.C. 102, 104, 86 S.E.2d 759, 761; accord, In re Jones, 14 N. C.App. 334, 188 S.E.2d 580.

A court should not take a child from the custody of its parents and place it in the hands of a third person except upon convincing proof that the parent is an unfit person to have custody of the child or for some other extraordinary fact or circumstance. 3 Lee, N.C. Family Law, Custody of Children, § 224, p. 25. "(A) natural parent, father or mother, as the case may be, who is of good character and a proper person to have the custody of the child and is reasonably able to provide for it ordinarily is entitled to the custody as against all other persons, . . . such as other relatives, including grandparents. . . ." (Citation omitted). Shackleford v. Casey, supra; see Child Custody-Father or Grandparent, 25 A.L.R.3d 7.

In this case there is no evidence that it would be to the best interest of the child that the grandparents should be awarded custody or partial custody of the child; nor has there been such a determination by the court. All of the evidence and findings point to the father and the stepmother of the child as being the fit and proper persons to have the care and custody of the child. There is absolutely no suggestion by anyone that the child's interests would not be served best by absolute custody in the father.

The fact that the grandparents love the child is no cause to give them a legally enforceable right to have the child visit with them one weekend a month, or any other time. It is surely to be desired that the child will be able to enjoy the love and affection of her grandparents and that they in turn will be able to enjoy the love and affection of the child. But this desire does not justify interfering with the proper and normal parent-child relationship.

We do not consider the consent of the father in the 28 January 1971 Judgment to be an impediment to his now having full and complete custody of his daughter. At that time he had been served with notice of a custody hearing within ten days of his wife's death, and the hearing was only twenty-one days after her death. Under such circumstances there is small wonder that he was willing to consent to partial custody by the grandparents, although he may not have been well advised.

The order appealed from is reversed, and this cause is remanded to the District Court for a new hearing on the defendant's petition.

Reversed and remanded.

VAUGHN and GRAHAM, JJ., concur.