56 S.E. 509 | N.C. | 1907
(16) This case was before us at the last term, and will be found reported in 142 N.C. at page 19, where the facts not herein mentioned are stated. We there directed certain additional findings to be made. His Honor has found, in compliance with our order, that the child was not abandoned by its father (the petitioner) to its grandparents (the respondents), and that the interests and welfare of the child will not be materially prejudiced by its restoration to the petitioner.
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 person for good and sufficient reasons. In re Lewis,
There is no legal duty or obligation resting upon the grandfather to support and educate his grandchild, whereas the father does rest under such an obligation. This fact should have some weight with the court in deciding a controversy between them as to the child's custody, apart from the natural claim the father has to the first consideration, as the death of the grandparent or his refusal longer to care for the child might leave the latter without any natural guardian or protector and result in his becoming a charge upon the community.
While the court, in the exercise of a sound discretion, may order the child into the custody of some person other than the father, when the facts and circumstances justify such a disposition of the child, we do not think that any such case is presented in this record as should induce us to adopt that course and except this case from the general rule. The father has done nothing by which he has incurred a forfeiture of his right to the custody of his offspring. There is no room for (18) the exercise even of a sound discretion in favor of the grandparents who now have possession of the child. Speaking for himself, and not committing the Court to his view, the writer of this opinion would hesitate to remove the child from its present custody, if the law were more elastic, and we were vested with a larger discretion than is given by the law. We must follow the precedents and the general principles of justice established by them, though the result may be contrary to what we may consider as the real merits of the particular case, and though by the facts, even as found by the court, our sympathies may be enlisted in behalf of the grandparents. The insistence upon his strict right under the circumstances may not be very creditable to the petitioner, yet the law is inexorable in such a case, and cannot be made to yield in deference to a mere sentiment or to a tender regard for the feelings of one of the parties; nor are we permitted to exercise an arbitrary discretion.
No error.
Cited: In re Turner,
