Griffith v. Griffith
81 S.E.2d 918
N.C.
1954
Check Treatment
JOHNSON, J.

Tbe judgment below seems to have been entered by tbe trial judge under tbe belief tbat as a matter of law be could not permit tbe mother to remove tbe child from tbe State in tbe absence of an aifirma-tive showing tbat tbe resident father is unfit for custody. While this view is supported by statements appearing in some of tbe earlier decisions of this Court, tbe settled law of this State places no such burden on a parent custodian who requests leave to remove a child from tbe jurisdiction of tbe court. In such case we apprehend tbe true rule to be tbat tbe court’s primary concern is tbe furtherance of tbe welfare and best interests of tbe child and its placement in tbe home environment tbat will be most conducive to tbe full development of its physical, mental, and moral faculties. All other factors, including visitorial rights of tbe other applicant, will be deferred or subordinated to these considerations, and if tbe child’s welfare and best interests will be better promoted by granting permission to remove tbe child from tbe State, tbe court should not hesitate to do so. The criterion is not whether the resident parent or applicant does or does not possess tbe minimum of custodial fitness, but, rather, it is for tbe court to determine by way of comparisons between tbe two applicants, upon consideration of all relevant factors, which of tbe two is best-fitted to give tbe child tbe home-life, care, and supervision tbat will be most conducive to its well-being. Naturally, no bard and fast rule can be laid down for making this determination, but each case must be determined upon its own peculiar facts and circumstances.

Tbe foregoing formula is in accord with tbe decisions of this Court in In re Means, 176 N.C. 307, 97 S.E. 39, and Clegg v. Clegg, 187 N.C. 730, 122 S.E. 756, and is supported by tbe overwhelming weight of authority in this country, as shown by tbe collection of cases in these Annotations: 154 A.L.R. 552, and 15 A.L.R. 2d 432. See also Harris v. Harris, 115 N.C. 587, 20 S.E. 187.

Tbe courts are being called upon more and more to decide these non-residence child-custody cases. Tbe cause stems from tbe frequency with which divorced parents remarry and, as a natural incident to our ever-expanding interstate economy, move from place to place across state lines. The practical aspects of tbe forces at play are succinctly stated in tbe annotation in 154 A.L.R. at page 552:

*276 “Frequently one of tbe divorced parents marries a nonresident; often a parent is employed by, or marries one who is employed by, a corporation which transfers him to another jurisdiction; at other times one obtains a position or business in another jurisdiction; at times it becomes necessary for the parent having custody of a child to live with relatives in another jurisdiction for economic reasons; and occasionally one parent moves to a second state while the other parent moves to a third state. In these and other instances the question arises whether the person having custody of a child or to whom custody would otherwise be granted is to be tied down permanently to the state which awards custody. The result of the decisions is that where the custodian has a good reason for living in another state and such course is consistent with the welfare of the child, the court will permit such removal or grant custody to the nonresident; but where such course is not consistent with the child’s best interests, its removal will not be permitted, and the courts will not award custody to a nonresident.”

The following are representative cases, selected from the mass of citations appearing in the foregoing annotations, in which courts of last resort have sanctioned child-custody awards to nonresidents, or approved removal of the child to another jurisdiction in which the custodian had established or intended to establish a new residence, where it was made to appear that such removal would better promote the welfare and interests of the child: Worthy v. Worthy, 245 Ala. 54, 18 So. 2d 721; Roosma v. Moots, 62 Idaho 450, 112 P. 2d 1000; Duncan v. Duncan, 293 Ky. 762, 170 S.W. 2d 22, 154 A.L.R. 549; Lambeth v. Lambeth, 305 Ky. 189, 202 S.W. 2d 436; Welker v. Welker, 325 Mass. 738, 92 N.E. 2d 373; Campbell v. Campbell, 156 Neb. 155, 55 N.W. 2d 347; Butler v. Butler, 83 N.H. 413, 143 A. 471; Nash v. Nash, 236 App. Div. 89, 258 N.Y.S. 313, affd. without op. 261 N.Y. 579, 185 N.E. 746; Arnold v. Arnold, 67 Ohio App. 282, 36 N.E. 2d 430; Watkins v. Rose, 115 S.C. 370, 105 S.E. 738; West v. West, 208 S.O. 1, 36 S.E. 2d 856; Kirby v. Kirby, 126 Wash. 530, 219 P. 27; Bennett v. Bennett, 228 Wis. 401, 280 N.W. 363.

In Arnold v. Arnold, supra (36 N.E. 2d 430), wherein it was made to appear that the divorced mother, to whom custody of the child had been awarded in her Ohio divorce action, had secured more remunerative employment in Florida, and that the welfare of the child would be best served by permitting it to live with the mother in Florida, it was held that such circumstances warranted modification of the former order so as to permit the mother to take the child to Florida.

In Kirby v. Kirby, supra (219 P. 27), wherein it appeared the child’s mother had remarried and her second husband could improve his business connections and associations by removing from the state, it was held that *277 tbe beneficial effect which such better business connections would have upon the welfare of the child justified its removal from the jurisdiction.

In Bennett v. Bennett, supra (280 N.W. 363), wherein the father, to whom custody of the child had been granted in a divorce proceeding, had an opportunity for employment in another jurisdiction at a larger salary and with prospect of advancement, and it appeared that the welfare of the child would not be impaired in any way by the removal, an order authorizing removal of the child from the jurisdiction was held proper.

In Campbell v. Campbell, supra (55 N.W. 2d 347), the Nebraska divorce decree awarded custody of a twenty-eight months old boy to the mother. Eight months later the mother filed application requesting permission of the court to remove the child to another state, the basis of the application being economic necessity of the mother. The trial court entered a decree denying the application and awarding custody of the child to his father’s parents and enjoining his removal from the jurisdiction of the court. On appeal the judgment was reversed, with the Court stating: “We find no reason whatever for depriving plaintiff of the child’s custody or preventing his removal from the jurisdiction of the court to Idaho where apparently his best interests will be served.”

Numerous well-considered decisions give emphasis to the proposition that when it is apparent the best interests of the child will be promoted by permitting removal from the state, the court should not hesitate to grant leave of removal by reason of the fact that the visitorial or part-time custodial rights of the other parent would be curtailed or eliminated thereby; Roosma v. Moots, supra; Duncan v. Duncan, supra; Lambeth v. Lambeth, supra; Kane v. Kane, 241 Mich. 96, 216 N.W. 437; Butler v. Butler, supra; Nash v. Nash, supra; Arnold v. Arnold, supra; Bennett v. Bennett, supra.

In Duncan v. Duncan, supra (170 S.W. 2d 22), it is stated: “The sole question presented by this appeal is whether the chancellor erred in modifying the judgment so as to permit Mrs. Duncan to remove to Pennsylvania and take the children with her. The only objection to the modification is that it will make the visitations of the father more difficult, but his convenience must give way to what is for the best interests of the children.”

In Lambeth v. Lambeth, supra (202 S.W. 2d 436), wherein it was made to appear that it would be for the best interests of an infant girl to go with her divorced mother from Kentucky to the State of Mississippi to live with her close relatives, the mother was given custody notwithstanding the father would be deprived of week-end custody granted him in the former order.

In Butler v. Butler, supra (143 A. 471), wherein the trial court in New Hampshire awarded custody of five children to a custodian living *278 in Massachusetts, the appellate court, in affirming the judgment below, said: “While access to the child by the parent denied custody is an important right, it is one that must yield to the greatest good of the child.”

In Kane v. Kane, supra (216 N.W. 437), it is said: “Access to the child by the parent denied custody is an important right. It is recognized that awarding custody to a nonresident parent may render the privilege of visitation impracticable in many cases. That privilege is not an absolute right, but one which must yield to the good of the child.”

The former decisions of this Court cited and relied on by the defendant have been examined and carefully considered. They are distinguishable or not authoritative and controlling upon the facts here presented.

The defendant urges that, in the absence of a showing of unfitness on his part, he is entitled to custody of the child as a matter of law upon the authority of the following statement in Latham v. Ellis, 116 N.C. 30, 33, 20 S.E. 1012: “In North Carolina the father has always been entitled to the custody of his children against the claims of every one except those to whom he may have committed their custody and tuition by deed (Sec. 1562 of The Code); or unless he is found to be unfitted to keep their charge and custody by reason of his brutal treatment of them, or his reckless neglect of their welfare and interests, when their care will be committed to some proper person on application to the courts.” (Italics added.) However, when the entire opinion in the cited case is read and considered contextually in the light of its factual background, it is apparent that the foregoing excerpts may well be treated as obiter dicta and disregarded as being at variance with the established rule that the 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, in accordance with principles enunciated in the oft-cited decision in In re Lewis, 88 N.C. 31 (decided more than ten years before Latham v. Lewis, supra), in which Ruffin, the younger, said: “As touching the right to the custody of children, the doctrines of the common law have been greatly weakened of late, and courts pay less regard to the strict legal rights of parents, even than they were wont to do, and look more to the interests, moral and physical, of the infants themselves— making it, indeed, their paramount consideration.” And then, on authority of Hurd on Habeas Corpus, 528, the opinion goes on to say: “. . . where the custody of children is the subject of controversy, the legal rights of parents and guardians will be respected by the courts, as being founded in nature and wisdom, and essential to the virtue and happiness of society, still the welfare of the infants themselves is the polar star by which the discretion of the courts is to be guided; . . .” See also Finley v. Sapp, 238 N.C. 114, 76 S.E. 2d 350; Brake v. Brake, 228 N.C. 609, 46 S.E. 2d 643.

*279 It is also noted that in Latham v. Ellis, supra, neither of the applicants was a nonresident. There, the custody of a 6-year-old girl was involved, in a contest between the child’s father and her maternal grandparents, in whose home the little girl’s father had lived with her and her older brother for about four years following the death of the children’s mother, which occurred only ten days after the girl’s birth. The father — shown to be a moral, temperate, and industrious man, possessed of a kind, affectionate nature, and fit and suitable to have custody of the child — remarried and moved away, taking with him the little boy two years older than the girl, and established a home several miles distant. The home so established was shown to be a suitable and proper place in which to rear the little girl. The lower court awarded custody to the father, and this Court affirmed, with the record on appeal disclosing conclusively that the well-being of the child would be best promoted by allowing her to be reared with her young brother in the home of her father, rather than requiring her to remain in the lonely home of her aged grandparents, notwithstanding they were shown to be “persons of good character,” with affectionate attachment to the little girl and possessed of sufficient means to care for all her physical needs. It thus appears that the decision in the cited case may well have been rested on paramount considerations of the child’s welfare and sustained on authority of the principles explained and applied in In re Lewis, supra (88 N.C. 31), rather than upon the preferential rights of the father under outmoded principles of the ancient common law.

Therefore, since the correct result was reached in Latham v. Ellis, supra, we do not overrule the decision. Instead, we disapprove the statement of principles upon which the decision was rested and treat such statement as ojbiter dicta, not to be followed or considered as authoritative, either in respect to the Latham case itself or any subsequent decision based on the disapproved statement of principles appearing therein. (See In re Fain, 172 N.C. 790, 90 S.E. 928, and other cases citing the Latham case shown in Shepard’s North Carolina Citations.)

The defendant cites a number of decisions in which this Court (1) approved rulings below in declining to award custody to nonresident applicants or (2) disapproved rulings contra. (In re Turner, 151 N.C. 474, 66 S.E. 431; Walker v. Walker, 224 N.C. 751, 32 S.E. 2d 318; In re De Ford, 226 N.C. 189, 37 S.E. 2d 516; Gafford v. Phelps, 235 N.C. 218, 69 S.E. 2d 313). However, our examination of these cases discloses that the essence of the decisions is not that nonresidence is in itself a disqualification for custody, but rather that the child’s welfare and interests would be better subserved and promoted with custody awarded to the applicant who perchance was a resident of this State. And it is noted that in Harris v. Harris, supra (115 N.C. 587), also cited by the defendant, the crucial factor is the failure of the nonresident applicant to carry the burden of *280 proof by showing she was in anywise more suitable than the resident parent. See Annotation: 15 A.L.R. 2d 432, at page 463.

Also, it is an established rule with us that in the absence of unusual circumstances the courts should not enter an order permitting a child to be removed from the State by one to whom unqualified custody has not been awarded. The reason for this rule rests on practical considerations of procedure as explained by Barnhill, J., now C. J., in In re De Ford, supra (226 N.C. 189). However, it is implicit in this rule that its application does not in anywise interfere with the operation of the principle which sanctions award of absolute custody to a nonresident applicant, with or without the right of visitation, when such is shown to be conducive to the best interests and welfare of the child. Where this is made to appear and an award is made in favor of a nonresident applicant against a resident parent of the child, we proceed upon the assumption that courts, properly established and having jurisdiction at the domicile of the nonresident custodian, may hear further and determine justly matters touching the care and control of the child upon such changed conditions, made to appear, as would require modification of the custodial status. In re Means, supra (176 N.C. 307); 17 Am. Jur., Divorce and Separation, Sec. 668; 39 Am. Jur., Parent and Child, See. 25. See also Hardee v. Mitchell, 230 N.C. 40, 51 S.E. 2d 884; Story v. Story, 221 N.C. 114, 19 S.E. 2d 136; Stout v. Pate, 209 Ga. 786, 75 S.E. 2d 748.

We have not overlooked the fact that the judgment below contains a recital in the nature of a finding to the effect that the interests of the child would be served best by granting custody to the defendant father. Nevertheless, the record impels the conclusions that the ease was heard and judgment was entered under a misapprehension of the pertinent principles of law. With us, the usual practice is to set aside facts which are found under misapprehension of the law, on the theory that the evidence should be considered in its true legal light. McGill v. Lumberton, 215 N.C. 752, 3 S.E. 2d 324, and cases there cited. See also Coley v. Dalrymple, 225 N.C. 67, 33 S.E. 2d 477; Credit Co. v. Saunders, 235 N.C. 369, top p. 373, 70 S.E. 2d 176, bot. p. 179. It is so ordered here. Therefore, to the end that the plaintiff may have the evidence considered and the facts found in the light of correct legal principles, the judgment is reversed and the cause remanded.

Reversed and remanded.