Latham v. . Ellis

*33 MONTGOMERY, J.: In contests between parents in respect to the custody of their children, whether in suits for divorce, or in habeas corpus proceedings where the husband and wife are living in a state of separation without being divorced, the court or judge before whom the suit or proceedings are heard may award the charge and custody of the child or children to either the husband or the wife, as may appear to be for the best interest, and welfare of the child or children. Code, Sections 1570 and 1661. But in the case before us the contest is not between husband and wife, but it is between the father of the child and her maternal grandparents. Under the common law, the father’s claim to the custody of his minor children, under all circumstances, was paramount. The Courts of Chancery, however, upon assuming jurisdiction over the persons and estates of infants, overruled the common law 'in this particular, and have for a long time exercised the right to commit the custody and tuition of infant children to others than the father, in cases where he grossly and recklessly neglects their interests, or is guilty of course and brutal treatment of them. Chancellor Kent, in 2 Com., 205, writes; “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.” 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 (See. 1562 of The Code)-, or unless he is found to be unfitted to keep their charge and *34 custody by reason of bis 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. In our case, the respondents had no written contract or deed from the petitioner-father concerning the custody of the child. In the findings of fact by His Honor, the father was found to be a young man, moral, temperate and industrious, and in every way qualified to care for, support and educate his children, to be possessed of property and in good credit, and of excellent reputation. There is no error in the ruling- of the Court below, in which the child was remanded to the custody of the father, and the ruling of His Honor is affirmed. Affirmed.