Jolly v. Queen

142 S.E.2d 592 (1965)

264 N.C. 711

Peggy Sue JOLLY, Petitioner, v. J. Wilburn QUEEN and wife, Pearl H. Queen, Respondents.

No. 29.

Supreme Court of North Carolina.

June 18, 1965.

*594 Paul J. Story, Marion, for petitioner, appellant.

Walter C. Benson, Charlotte, for respondents, appellees.

*595 SHARP, Justice.

"It is well settled law in this State, and it seems to be universally so held, that the mother of an illegitimate child is its natural guardian, and, as such, has the legal right to its custody, care and control, if a suitable person, even though others may offer more material advantages in life for the child," Browning v. Humphrey, 241 N. C. 285, 287, 84 S.E.2d 917, 918; accord, Wall v. Hardee, 240 N.C. 465, 82 S.E.2d 370; In re Cranford, 231 N.C. 91, 56 S.E.2d 35; In re McGraw, 228 N.C. 46, 44 S.E.2d 349; In re Foster's Adoption, 209 N.C. 489, 183 S.E. 744; In re Shelton, 203 N.C. 75, 164 S.E. 332; In re Jones, 153 N.C. 312, 69 S.E. 217; 10 Am.Jur.2d, Bastards § 60 (1963); 3 Lee, North Carolina Family Law § 224 (3d Ed.1963).

"At common law the right to the custody of legitimate children was generally held to be in the father, but as to illegitimate children the rule was different. As between the putative father and the mother of illegitimate children, it is well established that the mother's right of custody is superior, and the father's right, if any such exists, is secondary." Annot., Right of mother to custody of illegitimate child, 98 A.L.R.2d 417, 431, citing cases from 20 jurisdictions, including North Carolina.

As against the right of the mother of an illegitimate child to its custody, the putative father may defend only on the ground that the mother, by reason of character or special circumstances, is unfit or unable to have the care of her child and that, for this reason, the welfare, or best interest, of the child overrides her paramount right to custody. In Dellinger v. Bollinger, 242 N.C. 696, 89 S.E.2d 592, this Court held that the putative father of an illegitimate child, even though his right to custody is not primary, has such an interest in the welfare of his child that he can bring a proceeding against the mother under G.S. § 50-13 for its custody. After overruling the mother's demurrer to the father's petition, and without giving her an opportunity to answer, the judge awarded the father custody on the basis of his affidavits (a reference to the record shows) that the mother was abusing, mistreating, and starving the 3-year-old child. This court treated the order as awarding custody pendente lite only and remanded the case so that the mother might answer the petition and offer her evidence.

In re McGraw, supra, decided prior to the 1949 amendment to G.S. § 50-13 (see In re Cranford, supra), the putative father, alleging facts which would support the jurisdiction of the Juvenile Court, sued out a habeas corpus to take custody of the child from its mother. He based his claim upon an alleged superior right in himself, as father, to the custody of his child. This Court, quoting from In re Shelton, supra, and In re Jones, supra, regarding the prima facie right of the mother to custody, dismissed his appeal from an adverse judgment, saying, per Seawell, J.:

"It is easy to see why the policy of the law, in its development from both circumstance and necessity, has not thus far conferred the superior right of custody on the non-legitimate father of a bastard child, at least while the latter remains nullius filius. We have not been presented with convincing authority to sustain the jurisdiction of the Superior Court in behalf of the petitioner; and we do not feel that the exigency of decision requires us to discuss that of the Juvenile Court." Id. 228 N.C. at 47, 44 S.E.2d at 350.

In this case Queen has taken no steps to legitimate the son whose custody he now claims. Gen.Stats., ch. 49, art. II. Therefore, under our intestacy laws, the child cannot inherit from his father or his father's relatives. Should Queen die, Mrs. Queen, of course, would have no legal obligation to the boy. The child and his lineal descendants can take "by, through and from *596 his mother and his other maternal kindred, both descendants and collaterals, and they are entitled to take from him." G.S. § 29-19; 3 Lee, op. cit. supra § 252. Should petitioner and her husband desire that he adopt the boy, Queen's consent would be unnecessary. G.S. § 48-6(a); In re Adoption of Doe, 231 N.C. 1, 9, 56 S.E.2d 8, 13. The child's domicile is that of his mother, petitioner. In re Blalock, 233 N.C. 493, 64 S.E.2d 848, 25 A.L.R.2d 818; Thayer v. Thayer, 187 N.C. 573, 122 S.E. 307; 3 Lee, op. cit. supra § 227. The only legal right which the boy can enforce against his putative father is provided by Gen.Stats., ch. 49, art. I. (Bastardy). But this article is not primarily to benefit illegitimate children but to prevent them from becoming public charges. Allen v. Hunnicutt, 230 N.C. 49, 52 S.E.2d 18.

In the face of all this, it would be anomalous indeed if the law should sanction an award of custody to the putative father when there is a specific finding that the mother "is now of good character and reputation and is a fit and suitable person to have the custody of minor children and is a fit and proper person to have custody of the said James William Piercy (sometimes known as James William Queen)." On this finding establishing her fitness, and the additional finding establishing that of her husband, the award of custody to the putative father, Queen, cannot be sustained. In re Cranford, supra. The mother being of good character and able to provide for her child, the finding of the judge that it is in the best interest of the child that he remain in the home of respondents for nine months during the year is not controlling. In re Shelton, supra. Conceivably, a judge might find it to be in the best interest of a legitimate child of poor but honest, industrious parents, who were providing him with the necessities, that his custody be given to a more affluent neighbor or relative who had no child and desired him. Such a finding, however, could not confer a right as against such parents who had not abandoned their child, even though they had permitted him to spend much time in the neighbor's home. In other words, the parents' paramount right to custody would yield only to a finding that they were unfit custodians because of bad character or other, special circumstances. So it is with the paramount right of an illegitimate's mother.

The judgment here contains no finding of fact which would justify the conclusion that petitioner has forfeited her paramount right to the custody and control of the child. If he is eventually to live with his mother, his step-father, and his half-brother, the time to begin is now. Under the law as applied to the findings in this case, petitioner is entitled to the exclusive custody of her child, James William Piercy, and we so hold.

The judgment of the court below is

Reversed.