44 S.E.2d 349 | N.C. | 1947
The petitioner, Willie Spurlin, claiming to be the father of the illegitimate child whose custody is in controversy, sued out habeas corpus
to take that custody from the mother. While he alleges facts which would support the jurisdiction of the juvenile court — see G.S., *47
Outside of the statutes which make the writ of habeas corpus available to determine the custody of a child between husband and wife when living separate and apart from each other (G.S.,
In Shelton's case,
"It is well settled as the law of this State that the mother of an illegitimate child, if a suitable person, is entitled to the custody of the child, even though there be others who are more suitable," citing Ashby v. Page,
106 N.C. 328 ,11 S.E. 283 .
To the same effect is In re Jones,
"In the case of illegitimate children this same prima facie right exists, perhaps to a lesser degree, in the mother," citing Ashby v. Page, supra, and Mitchell v. Mitchell,
67 N.C. 307 .
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.
The appeal is
Dismissed. *48