Shackleford v. Casey

150 S.E.2d 513 (1966)

268 N.C. 349

Mr. and Mrs. Donald SHACKLEFORD v. Mrs. Lenora B. CASEY and Husband, David R. Casey.

No. 284.

Supreme Court of North Carolina.

October 19, 1966.

*515 Fields & Cooper, by Leon Henderson, Jr., Rocky Mount, for petitioner appellants.

T. A. Burgess, Rocky Mount, John E. Davenport, Nashville, for respondent appellees.

HIGGINS, Justice.

As a general rule at common law and under our decisions, parents have the legal right to the custody of their infant children. This natural and substantive right the courts may not lightly disregard. "* * * (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 * * *." Spitzer v. Lewark, 259 N.C. 50, 129 S.E.2d 620.

In this case the father of the children is in the military service. His opportunity to have the active physical custody of the children is limited by reason of the duties required in that service. Necessarily, he must arrange for the actual custody to be lodged in someone whom he selects to act for him. This he has a right to do so long as the custodian he selects is a proper custodian and does not place the welfare of the children in jeopardy. The welfare of the children always comes first. The rule applies where the only living parent is in the military service. In re DeFord, 226 N.C. 189, 37 S.E.2d 516; In re Custody of Bowman, 264 N.C. 590, 142 S.E.2d 349; Thomas v. Thomas, 259 N.C. 461, 130 S.E.2d 871.

*516 The evidence offered supports the detailed findings of Judge Peel. They in turn support the award of custody to the father. The court properly considered the situation which will likely prevail if and when the petitioners' minor son is returned to the petitioners' home. Likewise, Judge Peel was properly reluctant to send the children to Texas where the court which now has jurisdiction of them would surrender them to another jurisdiction. In re DeFord, supra. The judgment entered in the court below gives first consideration to the welfare of the children and is supported by the court's conclusions, which in turn are justified by the evidence. The judgment entered in the court below is

Affirmed.