#### In the Matter of the Care and Custody of JAMES DuPREE McGRAW, an Infant.

(Filed 8 October, 1947.)

Habeas Corpus § 3—

Habeas corpus will not lie at tbe instance of tbe father of an illegitimate child to obtain its custody and control from its mother. Neither G. S., 17-39, nor G. S., 50-13, is applicable.

PETITIONER’S appeal from Bless, J., 19 July, 1947, Polk Superior Court.

ill. B. McOown for petitioner, appellant.

W. Y. Wilkins, Jr., for respondent, appellee.

Sea well, J.

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., *47110-23, et seq. — be rests bis cause of action on tbe superior right of tbe father to tbe custody of bis child; and in bis appeal from an adverse ruling of tbe Superior Court, asks adoption of that theory here.

Outside of tbe statutes which make tbe writ of habeas corpus available to determine tbe custody of a child between husband and wife when living separate and apart from each other (Gr. S., 17-39), or when divorced (G-. S., 50-13), and for other special statutory purposes, tbe use of tbe writ has been to determine and relieve against illegal restraint; and perhaps upon this principle tbe use has been enlarged to cover contests between tbe father (tbe wife and mother being dead) and grandparents'for tbe custody of bis children (In re Hamilton, 182 N. C., 44, 108 S. E., 305; In re TenHoopen, 202 N. C., 223, 162 S. E., 619), in recognition of tbe father’s superior right to tbe custody of tbe child; and perhaps other cases where tbe prima facie right of tbe legitimate parents to tbe custody of tbe child has been interfered with by a stranger. In these and similar cases legitimate children were involved. Tbe statutes above cited refer to children born to married persons and have no application to tbe case at bar.

In Shelton’s case, 203 N. C., 75, 164 S. E., 332, where the controversy was between tbe mother of an illegitimate child and parties to an invalid adoption, Justice Connor, speaking for the Court, said:

> “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, 153 N. C., 312, 69 S. E., 217, in which case Justice Hohe, writing the opinion and speaking of the right of legitimate parents, says:

> “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 films. 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.