Comer v. Comer

300 S.E.2d 457 (1983)

Altia Lou COMER v. Thomas COMER.

No. 8225DC318.

Court of Appeals of North Carolina.

March 15, 1983.

*459 Wilson, Palmer & Cannon by Bruce L. Cannon, Lenoir, for plaintiff.

William W. Respess, Jr., Lenoir, for defendant.

EAGLES, Judge.

This appeal raises the sole issue of whether the trial judge erred in granting custody of plaintiff's minor child to the child's paternal aunt and uncle upon the death of the child's father. Appellant argues that the custody rights of the biological mother should control and the wishes of the eleven year, eleven month old child should not govern.

G.S. 50-13.2(a) sets the standard for awarding custody of a minor child as follows:

An order for custody of a minor child entered pursuant to this section shall award the custody of such child to such person, agency, organization or institution as will, in the opinion of the judge, best promote the interest and welfare of the child. An order awarding custody must contain findings of fact which support the determination by the judge of the best interest of the child.

Brooks v. Brooks, 12 N.C.App. 626, 184 S.E.2d 417 (1971) stated that:

The guiding principle to be used by the court in a custody hearing is the welfare of the child or children involved. While this guiding principle is clear, decision in particular cases is often difficult and necessarily a wide discretion is vested in the trial judge. He has the opportunity to see the parties in person and to hear the witnesses, and his decision ought not to be upset on appeal absent a clear showing of abuse of discretion.

Id. at 630, 184 S.E.2d at 420.

Where one parent is dead, the surviving parent has a natural and legal right to custody and control of their minor children. This right is not absolute, but it may be interfered with or denied "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 (1955).

The Supreme Court has dealt with the traditional preference for biological parents thus:

*460 [T]he welfare of the child is the paramount consideration to which all other factors, including common-law preferential rights of the parents must be deferred or subordinated ...

Griffith v. Griffith, 240 N.C. 271, 278, 81 S.E.2d 918, 923 (1954).

Furthermore, our court has held that the trial judge's discretion is such that he is "not required to find a natural parent unfit for custody as a prerequisite to awarding custody to a third person." In re Kowalzek, 37 N.C.App. 364, 368, 246 S.E.2d 45, 47 (1978).

The trial court's order includes the determination that the award of custody of the child to defendants "is in his best interests," that the child's "emotional well being will best be served by his custody being placed in and with them," and that "it is not in the best interests of the minor child that his custody be placed in and with the plaintiff, his natural mother."

The trial court in child custody cases is vested with broad discretion. The trial judge's decision will not be upset in the absence of a clear abuse of discretion, if the findings are supported by competent evidence. Sheppard v. Sheppard, 38 N.C.App. 712, 248 S.E.2d 871 (1978).

Here the court's decision is amply supported by the record. It is clear that the court carefully considered all the evidence, including the desires of the child, and found that the best interests of the child were best served by custody being awarded to the child's paternal aunt and uncle. There is no evidence of an abuse of discretion. Therefore, the decision of the trial court is

Affirmed.

HEDRICK and JOHNSON, JJ., concur.