Brake v. Mills

Annotate this Case

154 S.E.2d 526 (1967)

270 N.C. 441

Anna BRAKE, Petitioner, v. Alton Van MILLS, Respondent.

No. 703.

Supreme Court of North Carolina.

May 24, 1967.

*528 B. Gordon Gentry and E. Raymond Alexander, Jr., Greensboro, for petitioner.

Cahoon & Swisher, Greensboro, for respondent.


The petitioner contends that the court below erred in denying her the custody of her children because she had not submitted evidence to show that the health, welfare, education and happiness of her children would be materially promoted by taking them from the custody of their aunt and putting them in the custody of the petitioner, their mother.

We think it obvious that the term "materially promoted," as used in the order of Judge Shaw, means substantially promoted, not financially promoted. We have said many times that the natural right of parents to the custody of their infant children is not lightly to be disturbed, and taking children from a parent's custody cannot be justified by the mere showing that some other person is financially able to offer them greater material comforts and advantages. Shackleford v. Casey, 268 N.C. 349, 150 S.E.2d 513; Spitzer v. Lewark, 259 N.C. 50, 129 S.E.2d 620. See also, Lee, North Carolina Family Law, ยง 224. The right of the parent is not absolute, however, and, in extraordinary circumstances, the court may find both parents unfit and place the minor child or children in the custody of a third person. Wilson v. Wilson, 269 N.C. 676, 153 S.E.2d 349. In all cases involving the custody of a minor child, the welfare of the child is the controlling consideration. Thomas v. Thomas, 259 N.C. 461, 130 S.E.2d 871; Kovacs v. Brewer, 245 N.C. 630, 97 S.E.2d 96. While the respective abilities of the claimants to provide material comforts and advantages to the child are relevant to this inquiry, this is of minor significance as compared to the intangible attributes and qualities which characterize a good home.

In October 1964 the Circuit Court of Santa Rosa County, Florida, found the petitioner was not a suitable and fit person to have the custody of these little children. In June 1965 Judge Latham made a similar finding. The evidence before him, which it would serve no useful purpose to recount, amply supported that finding. While affidavits filed before Judge Shaw indicate that the petitioner has gained the respect of her neighbors and associates in Florida, this evidence does not compel a finding that she is now a fit and proper person to have the custody of these children in her home in Florida, and Judge Shaw did not so find.

The testimony of these little children in the privacy of the judge's chambers speaks more eloquently than carefully prepared affidavits. It paints the picture of contented children, safe and secure in a home where they enjoy that happy combination of discipline and affection which promotes the growth of character. There was no error in the refusal of the court below to uproot these children from the home in which they have found these conditions in order that they may be removed from this State and transplanted back into the identical home from which they were removed for their own good by the Florida court.


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