{
  "id": 8552199,
  "name": "IN THE MATTER OF THE CUSTODY OF JERRY EDWARD PITTS, JR., MICHAEL TODD PITTS, and RODNEY CRAIG PITTS, Minors",
  "name_abbreviation": "In re the Custody of Pitts",
  "decision_date": "1968-08-14",
  "docket_number": "No. 68SC174",
  "first_page": "211",
  "last_page": "213",
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      "cite": "2 N.C. App. 211"
    }
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
  },
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    "name_long": "North Carolina",
    "name": "N.C."
  },
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    {
      "cite": "153 S.E. 2d 349",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "269 N.C. 676",
      "category": "reporters:state",
      "reporter": "N.C.",
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        8565575
      ],
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      "case_paths": [
        "/nc/269/0676-01"
      ]
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  "last_updated": "2023-07-14T19:15:57.624547+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Mallakd, C.J., and BrocK, J., concur."
    ],
    "parties": [
      "IN THE MATTER OF THE CUSTODY OF JERRY EDWARD PITTS, JR., MICHAEL TODD PITTS, and RODNEY CRAIG PITTS, Minors"
    ],
    "opinions": [
      {
        "text": "Parker, J.\nAppellant assigns as error the trial court\u2019s finding that respondent is a fit and proper person to have custody of her three minor children and the order based thereon granting her primary custody and control. The petition in this case was filed 24 October 1967 and is controlled by Chapter 1153 of the 1967 Session Laws which became effective 1 October 1967. That statute provides that an order for custody of a minor child \u201cshall award the custody of such child to such person, agency, organization or institution as will, in the opinion of the judge, best promote the interest and welfare of the child.\u201d G.S. 50-13.2(a). This statutory directive merely codified the rule which had been many times announced by the North Carolina Supreme Court to the effect that in custody cases the welfare of the child is the polar star by which the court\u2019s decision must ever be guided. Wilson v. Wilson, 269 N.C. 676, 153 S.E. 2d 349, and cases cited; 3 Lee, N. C. Family Law, 3rd, \u00a7 224. While this guiding principle is clear, decision in particular cases is often difficult and necessarily a wide discretion is vested in the trial judge. He has the opportunity to see the parties in person and to hear the witnesses, and his decision ought not to be upset on appeal absent a clear showing of abuse of discretion. Appellant\u2019s counsel recognizes this in his brief when he states that the question before the Court on this appeal is \u201csimply whether the trial court abused its discretion\u201d in applying the long established formula that the court\u2019s primary concern must be to further the best interest and welfare of the child.\nIn the present case a preliminary order had been entered requesting the Chief Family Counselor for the District Court of Cumberland County, where the parties had resided prior to their separation and where respondent continued to reside, to make an investigation of the family life of the parties and their three children. The report of this investigation was presented to the court at the hearing and in addition the Chief Family Counselor and his assistant, who together had made the requested investigation, appeared in person and testified. Their report and testimony would fully support the court\u2019s finding that the respondent mother was a fit and proper person to have custody of her children. Appellant points to the evidence presented by him tending to support his charge that his wife had engaged in an illicit affair with another man, contending that this evidence would compel a finding that she was not a fit person to have custody of her small children. It was, however, the function of the trial court to evaluate this evidence together with all other evidence in the case. In our opinion, and we so hold, the evidence to which appellant points would not compel the trial court to conclude that respondent was unfit to have custody of her own children, particularly in the light of the very substantial evidence before the court to the effect that in her relationship with her children she had been and continued to be a good mother. In the record before us we find no abuse of the trial court\u2019s discretion, and in the order appealed from we find\nNo error.\nMallakd, C.J., and BrocK, J., concur.",
        "type": "majority",
        "author": "Parker, J."
      }
    ],
    "attorneys": [
      "Boss, Wood & Dodge, by Harold T. Dodge, for petitioner appellant.",
      "Latham, Pickard & Ennis, by M. Glenn Pickard, for respondent appellee."
    ],
    "corrections": "",
    "head_matter": "IN THE MATTER OF THE CUSTODY OF JERRY EDWARD PITTS, JR., MICHAEL TODD PITTS, and RODNEY CRAIG PITTS, Minors\nNo. 68SC174\n(Filed 14 August 1968)\n1. Parent and Child \u00a7 6; Habeas Corpus \u00a7 3\u2014 custody of minor child \u2014 \u201cwelfare of the child\u201d rule\nG.S. 50-13.2(a), which became effective 1 October 1967, provides that an order for custody of a minor child \u201cshall award the custody of such child to such person, agency, organization or institution as will, in the opinion of the judge, best promote the interest and welfare of the child\u201d; this statutory directive merely codifies the rule that in custody cases the welfare of the child is the polar star by which the court\u2019s decision must ever be guided.\n2. Habeas Corpus \u00a7 3\u2014 custody of minor child \u2014 review of court\u2019s decision\nThe decision to award custody of a minor is vested in the discretion of the trial judge who has the opportunity to see the parties in person and to hear the witnesses, and his decision ought not to be upset on appeal absent a clear showing of abuse of discretion.\n3. Habeas Corpus \u00a7 3\u2014 custody of minor child \u2014 sufficient evidence to support award to mother\nIn a habeas corpus proceeding to determine the custody of minor children, the trial court did not abuse its discretion in awarding custody of the children to the mother, notwithstanding there was evidence to support the husband\u2019s charge that his wife had engaged in an illicit affair with another man, since there was sufficient evidence to fully support the .court\u2019s finding that the mother was a fit and proper person to have custody' of the children.\nAppeal by petitioner from Bailey, J., 29 January 1968 Civil Session of Alamance Superior Court.\n. This action was instituted by Jerry Edward Pitts, Sr., as petitioner, against his estranged wife, Nancy Louise Pitts, by application for Writ of Habeas Corpus to determine the custody of their three minor children who were aged two, four, and nine years respectively. At the hearing both petitioner and respondent were present in person and represented by counsel and both presented testimony of a number of witnesses and evidence in the form of affidavits and exhibits. Upon completion of the hearing the court entered an order making extensive findings of fact and concluded that both the petitioner father and the respondent mother were fit and proper persons to have custody of their three minor children. In this order the court also concluded:\n\u201c5. That it is in the best interest of each of the minor chil- . dren, born of the marriage of the parties hereto, that his custody be placed in his mother, the respondent, Nancy Louise Pitts, and that such action will be conducive to the full development of his physical, mental and moral faculty.\n\u201c6. That it is in the best interest of the said children that their father, the petitioner herein, be allowed to visit with them and have them visit with him and to be in his custody from time to time.\u201d\nBased on these findings of fact and conclusions the court ordered that the custody of the three children be placed in the mother, but that the father should have the right to have the children in his custody on the first and third weekends of each calendar month and for a period of six weeks following the close of the school year. From the entry of this order, petitioner appeals.\nBoss, Wood & Dodge, by Harold T. Dodge, for petitioner appellant.\nLatham, Pickard & Ennis, by M. Glenn Pickard, for respondent appellee."
  },
  "file_name": "0211-01",
  "first_page_order": 231,
  "last_page_order": 233
}