Wilson v. Williams

256 S.E.2d 516 (1979)

42 N.C. App. 348

Wayne WILSON and Minnie Jane Wilson v. Brenda Absher W. WILLIAMS.

No. 7823DC1064.

Court of Appeals of North Carolina.

July 17, 1979.

*518 E. James Moore, North Wilkesboro, for plaintiffs-appellees.

John E. Hall and William C. Warden, Jr., North Wilkesboro, for defendant-appellant.

ARNOLD, Judge.

Defendant argues that, as she has not been found to be unfit to have custody of Richard, it was error for the trial court to award custody to the grandparents.

The court made no finding as to defendant's fitness to have custody of her son. However, defendant is correct in her assertion that there is no evidence in the record that she is unfit. And it is the general rule that where one parent is dead, the surviving parent has a right to custody of their minor children, a right which should be denied only for "the most substantial" reasons. James v. Pretlow, 242 N.C. 102, 104, 86 S.E.2d 759, 761 (1955). The trial court in the present case apparently found that defendant's continuing relationship with the man who killed Richard's father was such a substantial reason, and it is this decision we must review.

The parties cite to us a number of cases, none of which is on point. Defendant relies upon In re Jones, 14 N.C.App. 334, 188 S.E.2d 580 (1972), but in that case there appeared no circumstance which would justify withholding the child from the mother's custody. Plaintiffs' reliance is placed upon a number of cases in which the natural parent was found to be unfit, e. g. In re Craigo, 266 N.C. 92, 145 S.E.2d 376 (1965); Holmes v. Sanders, 246 N.C. 200, 97 S.E.2d 683 (1957); In re Edwards, 25 N.C.App. 608, 214 S.E.2d 215 (1975); Brandon v. Brandon, 10 N.C.App. 457, 179 S.E.2d 177 (1971); In re Stancil, 10 N.C.App. 545, 179 S.E.2d 844 (1971), which is not the case here.

In custody determinations, the best interest of the child is the overriding factor. See G.S. 50-13.2(a). And while it is presumed that it is in the child's best interest to be placed with a natural parent, this presumption may be rebutted by a circumstance which would substantially affect the child. In re Jones, supra. Wide discretion is vested in the trial court in these matters, since he has the opportunity to see the parties and hear the witnesses, Sheppard v. Sheppard, 38 N.C.App. 712, 248 S.E.2d 871 (1978), and his decision will not be disturbed in the absence of an abuse of discretion.

We can find no abuse of discretion here. Both parties are apparently quite fit to have custody of the child. If this were the case without more, defendant would be entitled to custody. However, the court has found, not without reason, that Richard would be adversely affected by being placed with his mother at this time, since she is still involved with the man who killed his father. We cannot say that this is not a circumstance sufficient to "substantially affect the child's welfare." In re Jones, supra, 14 N.C.App. at 339, 188 S.E.2d at 583. We uphold the court's decision, and we commend his efforts to insure that defendant has every reasonable opportunity to improve her relationship with her son.

The trial court's conclusions are adequately supported by the facts, and his order is

Affirmed.

HEDRICK and VAUGHN, JJ., concur.