Conley v. Johnson

210 S.E.2d 88 (1974)

24 N.C. App. 122

Melvin D. CONLEY, Petitioner, v. Christine JOHNSON, Respondent.

No. 7425DC672.

Court of Appeals of North Carolina.

December 4, 1974.

*89 Patton, Starnes & Thompson, P. A., by Stephen T. Daniel, Jr., Morganton, for petitioner appellee.

John H. McMurray, by C. Gary Triggs, Morganton, for respondent appellant.

BRITT, Judge.

Respondent contends that the challenged orders are invalid for the reason that the common law prevails in this State and under the common law the father of an illegitimate child is not entitled to visitation privileges absent consent of the mother. While we agree that ordinarily the common law prevails in this State, the same statute that makes that provision also provides ". . . and which has not been otherwise provided for in whole or in part, not abrogated, repealed, or become obsolete . . ." G.S. § 41. We think the principle argued by respondent has been abrogated by statutes as well as case law.

In 1967 our General Assembly enacted G.S. §§ 49-14, 49-15, and 49-16, which abrogate the common law. 3 R. Lee, North Carolina Family Law § 251 (Supp.1974). Under G.S. § 49-14, a reputed father of an illegitimate child can bring a civil action to establish paternity. Upon establishing paternity under G.S. § 49-14, ". . . the rights, duties, and obligations of the mother and the father so established, with regard to support and custody of the child, shall be the same, and may be determined and enforced in the same manner, as if the child were the legitimate child of such father and mother. . . ." G.S. § 49-15. (Emphasis ours). Note, however, that under G.S. § 49-14(a), ". . . (s)uch establishment of paternity shall not have the effect of legitimation," which is established under G.S. § 49-10.

G.S. § 50-13.1 states that "(a)ny parent,. . . claiming the right to custody of a minor child may institute an action . . . for the custody of such child . . ." We find nothing in this section which limits custody proceedings to the parent of a legitimate child. In Dellinger v. Bollinger, 242 N.C. 696, 89 S.E.2d 592 (1955), the court applied former G.S. § 50-13 and held that the father of an illegitimate child was a "parent" within the meaning of that statute so as to entitle him to bring an action for custody of the child. Accord, Jolly v. Queen, 264 N.C. 711, 142 S.E.2d 592 (1965).

G.S. § 50-13.2(b) authorizes the court to award to such person ". . . as will in the opinion of the judge best promote the interest and welfare of the child." G.S. *90 § 50-13.5(h) vests jurisdiction in the district court in actions or proceedings for child custody and support and G.S. § 50-13.5(i) grants the district court jurisdiction to award or deny "parental" visitation privileges. Irrespective of the statutes (G.S. § 5013.1 et seq.), it appears that the definition of "parent" in Dellinger includes both legitimate and illegitimate parents. If either can be awarded custody, either should be allowed visitation privileges.

We hold that the district court was authorized to grant petitioner visitation privileges and to punish respondent for refusing to allow petitioner to visit his child.

Affirmed.

CAMPBELL and VAUGHN, JJ., concur.