#### 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.