In Re Turner
66 S.E. 431
N.C.
1909
Check Treatment
Waliker, J.,

after stating the case: The ruling of Judge Joseph S. Adams in this case is, we think, fully sustained by the authorities and principles of law applicable to such cases. We repeat what we said in Newsome v. Bunch, 144 N. C., at p. 16, that the father-is, in the first instance, entitled to the custody of his child. But this rule of the common law has more recently been relaxed, and it has been said that where the custody of children is the subject of dispute between different claimants, 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 courts are to be guided to a right conclusion; and, therefore, they may, within certain limits, exercise a sound discretion for the benefit of the child, and in some cases will order it into the custody of a third *478 person, for good and sufficient reasons. In re Lewis, 88 N. C., 31; Hurd on Habeas Corpus, 528, 529; Tyler on Infancy, 276, 277; Schouler on Domestic Relations, sec. 428; 2 Kent’s Com., 205. But, as a general rule and at tlie common law, the father has the paramount right to the control and custody of his children as against the»world; this right springing necessarily from and being incident to the father’s duty to provide for their protection, maintenance and education. 21 A. & E. Enc., 1036; 1 Blackstone (Sharswood), 452, and note 10, where the authorities are collected. This right of the father continues to exist until the child is enfranchised by arriving at years of discretion, when the empire of the father gives place to the empire of reason. 1 Blk., 453. But we also said in that case that the court, in the exercise of a sound legal discretion, may order the child “into the custody of some person other than the father, when the facts and circumstances justify such an order in regard to the custody of the child. The law, as thus declared by us in that ease, is strongly established by the great weight of authority, and we must abide by it. It is also applicable to the facts of the case now under consideration. Kent, one of our wisest, most humane and greatest chancellors, thus states the rule: “The father, and on his death the mother, is generally entitled to the custody of the infant children, inasmuch as they are their natural protectors, for maintenance and education. But the courts of justice may, in their sound discretion and when the morals or safety or interests of the children strongly require it, withdraw the infants from the custody of the father or mother and place the care and custody of them elsewhere.” We endorsed this statement of the law in Latham v. Ellis, 116 N. C., at p. 33. The judge properly refused to award the custody of the child to its nonresident mother, under the facts and circumstances of this case. Harris v. Harris, 115 N. C., 587; In re Lewis, 88 N. C., 31, where will be found an able and valuable opinion of the younger Judge Ruffin upon this subject. He conclusively shows that the court has the power to award the custody of the child, upon considerations affecting the comfort and welfare of the infant, and, in the language of the learned and just Judge, “The court below did just what the authorities all say he should have done.” In Tiffany on Domestic Relations, at p. 248, it is said that, “Though the courts have a discretion in contentions over the custody of children, and will take into consideration the welfare of the child, they cannot act arbitrarily and disregard the right of the father (parent) merely because the prospects and surroundings of the child will be brighter if he is awarded to some other and *479 more wealthy person. Tbe right of the father is generally held to be a paramount one, if he is a fit person.” This is all very true. It would be a shocking injustice for the courts to act arbitrarily in the matter. They have a discretion, but it -must be a sound, legal discretion, subject in its exercise to review by this Court. This discretion must be exercised under the guidance of a proper sense of justice and a due regard for the welfare of the child and the interest of those who are its natural guardians. In this case the mother barely escaped the condemnation of the court below. Whilé the judge §hould always find the facts, and not state merely the evidence which tends to establish them, we think it sufficiently appears in the findings, as made, that the judge acted not only legally,'but humanely, in making the order. He retained full control of the matter, and may make such orders as the happiness and welfare of the child, the interests of all concerned and the ends of justice require. The order appealed from was right, and we concur with his Horror, Judge Adams, in his ruling, except that the custody of the child should not be committed to its mother, as is provided by the order of the court, in such a way as to enable her to remove the child beyond the jurisdiction of the court. This should be most carefully guarded against. Harriss v. Harriss, supra.

Modified and affirmed.