Citation Codes

Equivalent Citations

citation codes

Docket Number

15552

Advocates

Messrs. Culbertson Brown, of Greenville, S.C. Counsel for Appellant, cite: As to Moral Fitness or Unfitness of Mother for custody of child of tender age: 108 Kan., 460, 195 P., 861; 98 Kan., 663, 159 P., 405; Code of S.C. 1942, Sec. 8638; 39 A.J., pages 559, 600; 46 C.J., 1228; 46 C.J., page 1239; (Ala.), 108 So., 751; (La.), 145 So., 285; 45 So., 818; 134 So., 87; 54 So., 125. As to "Best Interest of Child": (Ga.), 125 S.E., 832; 134 S.C. 147, 132 S.E., 39. Mr. Edwin G. Patterson, of Anderson, S.C. Counsel for Respondent, cites: As to Circuit Court's Judgment being in accord with S.C. law, and to "Best Interest of Child": 11 Rich., 326; 19 S.C. 604; 72 S.C. 16, 51 S.E., 269; 84 S.C. 552, 66 S.E., 1049; 99 S.C. 92, 82 S.E., 991; 114 S.C. 295, 103 S.E., 534.

Judges

The Circuit Decree of Judge E.H. HENDERSON, ordered to be reported as the Judgment of the Court, follows:

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Smart Summary

Clardy v. Ford, Supreme Court of South Carolina — June 15, 1943

Factual and Procedural Background

This is an appeal from a judgment of Judge E. H. Henderson (Anderson County, February 1943) in a habeas corpus proceeding brought by Pauline Thomas Clardy (the petitioner and mother) against Mrs. Rufus Ford (the respondent and the child's great-aunt) for custody of Willis Daniel Clardy, a two‑year‑old boy. The father, a soldier in the United States Army stationed in California, had taken the child from the mother's custody and delivered him to the respondent to care for while he served in the armed forces.

Procedurally, Judge Henderson denied the mother's petition and remitted custody of the child to Mrs. Ford, while allowing the mother reasonable daylight visitation. The Supreme Court, in a per curiam opinion, affirmed the circuit decree. The opinion notes that the mother had contracted another marriage while her husband was away in the armed forces and was arrested and later pleaded guilty to bigamy, receiving two years' probation under Section 1038‑1, Code of 1942.

Legal Issues Presented

Whether the petitioner (the mother) is entitled to custody of the child.
How the statutory provision (Section 8638, Code) and common-law principles concerning parental custody rights (including the relative rights of father and mother) apply.
Whether the petitioner's moral character and financial circumstances affect her right to custody.
What disposition is in the best interest and welfare of the child while the father is serving in the armed forces.

Arguments of the Parties

Appellant's (Petitioner) Position

The petitioner claims she is entitled to custody of the child (the petition seeks custody in the mother's favor).
Counsel for the appellant cited authorities concerning the moral fitness or unfitness of a mother for custody and authorities concerning the "best interest of the child" (as reflected in the attorneys' citations appended to the record).

Respondent's Position

The respondent's return alleged that the child's father removed the child from the mother's custody and delivered him to the respondent for care while the father serves in the Army.
The respondent alleged that the petitioner is not of good moral character and lacks financial means to support the child.
The respondent presented facts about available financial support (the father's proposed allotments and the respondent's family support) and her own willingness and ability to care for the child.
Respondent's counsel argued that the circuit court's judgment was in accord with South Carolina law and with the "best interest of the child."

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Ex parte Hewitt, 11 Rich. 326	Illustration of earlier South Carolina authority on parental custody rights (father's comparative rights).	The court cited this case among several earlier S.C. decisions to support the statement that, at common law, the primary right to custody is in the father.
Ex parte Reed, 19 S.C. 604	Illustration of earlier South Carolina authority on parental custody rights (father's comparative rights).	Cited with other S.C. precedents to show that earlier decisions state the father ordinarily has the superior right even as against the mother.
Ex parte Davidge, 72 S.C. 16, 51 S.E. 269	Illustration of earlier South Carolina authority on parental custody rights.	Used as part of a group of earlier S.C. decisions supporting the common‑law view that the father has the primary right to custody.
Ex parte Tillman, 84 S.C. 552, 66 S.E. 1049	Illustration of earlier South Carolina authority on parental custody rights.	Cited along with other S.C. cases to explain historical treatment of parental custody rights and the father's role.
Hartley v. Blease, 99 S.C. 92, 82 S.E. 991	Illustration of earlier South Carolina authority on parental custody rights.	Included among S.C. precedents relied on by the court to describe prior holdings about parental rights.
Ex parte Scurry, 114 S.C. 295, 103 S.E. 534	Authority cited in the context of the petitioner's admitted conduct bearing on moral character.	The court cited this decision immediately after recounting the petitioner's admission of a second marriage without divorce, as supportive context for finding the petitioner not of good moral character.
134 S.C. 147, 132 S.E. 39	Cited by appellant's counsel as authority concerning the "best interest of the child."	This citation appears in counsel's list of authorities; the opinion records that counsel cited it but does not discuss or apply it in the court's written reasoning.
(Ga.) 125 S.E. 832	Cited by appellant's counsel as authority concerning the "best interest of the child."	Cited by counsel and recorded in the attorneys' citations; not otherwise discussed in the court's opinion.
108 Kan. 460, 195 P. 861; 98 Kan. 663, 159 P. 405; (Ala.) 108 So. 751; (La.) 145 So. 285; 45 So. 818; 134 So. 87; 54 So. 125	Cited by appellant's counsel under the topic "Moral Fitness or Unfitness of Mother for custody of child of tender age."	These out‑of‑state authorities were cited by appellant's counsel; the court's opinion records the citations but does not analyze or apply them in the written opinion.
11 Rich. 326	Cited by respondent's counsel as showing circuit court judgment accords with S.C. law.	Listed in counsel's citations and recorded in the opinion; the court relied generally on South Carolina precedent to explain parental rights as part of its reasoning.

Court's Reasoning and Analysis

(This section summarizes the sequence of matters the court explicitly considered and the legal points the court expressly relied upon.)

The court began by noting the procedural posture: a habeas corpus proceeding concerning a two‑year‑old child; the parties are the mother (petitioner) and the child's great‑aunt (respondent), who currently has custody at the father's request while he serves in the Army.
The court acknowledged that in proceedings of this kind both the legal and moral rights of claimants are to be regarded, but emphasized that "the paramount consideration of the Court is the welfare of the child." The court therefore framed its inquiry around the child's best interest.
The court considered the statutory and common‑law framework. It cited Section 8638 of the Code (Act of 1923), stating that "neither parent has any right paramount to the right of the other concerning the custody of their child." It also explained the common‑law background in which the primary right to custody is in the father, and it cited several earlier South Carolina decisions as reflecting that the father ordinarily has the superior right even as against the mother.
The court reviewed the factual evidence: the father's military service and arrangement (delivering the child to respondent), the petitioner's conduct (a second marriage ceremony while still married to her husband), the petitioner's lack of independent income, Mr. Prickett's employment and willingness to support the child but lack of legal obligation, and the respondent's stable home circumstances, character, church attendance, and the husband's earning capacity. The court also noted the father's proposed allotment arrangement and the grandparents' willingness to help.
Applying the legal framework to the facts, the court found the petitioner was "not of good moral character" in light of her admitted second marriage without a prior divorce (a matter reflected in the record and discussed in the opinion). The court observed there was no certainty Mr. Prickett would continue to support the child and emphasized the absence of a legal obligation on his part.
Balancing these considerations under the controlling principle that the child's welfare is paramount, the court concluded that it is in the best interest of the child to remain with Mrs. Ford at the present time while the father is away. The court also recognized that circumstances might change (for example, if the father does not return or if the petitioner substantially reforms), in which event the matter could be reconsidered.
On that basis the lower court's order refusing the petition and remitting custody to Mrs. Ford was entered, and the Supreme Court, per curiam, affirmed the circuit decree and overruled the exceptions to it.

Holding and Implications

Final Ruling: The Supreme Court affirmed the circuit court's decree denying the petition of Mrs. Pauline Thomas Clardy and remitting custody of the infant Willis Daniel Clardy to Mrs. Rufus Ford. The court also affirmed the order granting the petitioner the right to visit her son at reasonable times during daylight hours.

Implications for the Parties:

The direct effect is that custody remains with Mrs. Ford while the child's father is serving in the armed forces.
The petitioner (mother) was denied custody and permitted visitation only at reasonable daylight times.
The court left open the possibility of further inquiry and modification if there is a substantial change in circumstances—specifically if the father does not return from war service or if the petitioner undergoes a "complete reformation." Thus the decision is fact‑specific and contingent on future developments.

Precedential Effect: The opinion reports and affirms the circuit court's judgment and relies on existing South Carolina authorities and statutory provision (Section 8638). The opinion does not purport to announce a new rule of law beyond application of established principles (welfare of the child as paramount; consideration of parental rights and moral fitness), and it records that the circuit decree is reported as the judgment of the Court. The court overruled the exceptions and affirmed.

Concise statutory references appearing in the opinion: Section 8638, Code (Act of 1923) (addressing parental rights) and Section 1038‑1, Code of 1942 (referenced in connection with the appellant's subsequent guilty plea and probation for bigamy).

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CLARDY v. FORD.

The Circuit Decree of Judge E.H. HENDERSON, ordered to be reported as the Judgment of the Court, follows:

June 15, 1943.

This is a proceeding in habeas corpus involving the custody of Willis Daniel Clardy, who is a boy two years of age. The petitioner is his mother, and the respondent, Mrs. Rufus Ford, is his great-aunt, the sister of his paternal grandmother.

The petitioner claims that she is entitled to the custody of the child. The respondent in her return alleges that the father of the child removed him from the custody of his mother to the respondent's home with the request that she take care of the child. He is a soldier in the Army of the United States now stationed in the State of California. Respondent also alleges that the petitioner is not of good moral character and is without financial means to support the child.

About three years ago, the petitioner, Pauline Thomas Clardy, was married. A short time ago she and her husband became estranged, and he entered the army. While her husband was away in the armed forces of our country, Mrs. Clardy had another marriage ceremony with Gettis Ray Prickett, on December 19, 1942, and they now reside together in the City of Greenville. Petitioner has been arrested for bigamy and is awaiting trial of the case in the Court of General Sessions for Greenville County. While on a furlough to Anderson County, the father obtained possession of the child and delivered him to his mother's sister to take care of for him while he was in the army.

Mr. Prickett is a taxicab driver, and earns from $35.00 to $40.00 per week. He is about thirty-five years of age and testified that he would be willing to support the child. The petitioner is twenty years of age and has no income whatever of her own. Mr. Prickett has two other sons, he and his wife being divorced. One boy is eighteen years of age and maintains himself, the other is eight years old and lives with his mother at Greensboro, N.C. Mr. Prickett does not furnish any support for him.

Mrs. Ford resides at Pelzer. She has four children with ages from eleven to nineteen years. The two oldest ones work in the mill. She is a woman of the highest character, and attends church regularly. Her husband works in the mill and earns from $37.00 to $60.00 per week as a mechanic. He expressed full willingness to care for the boy. The father of the boy has made provision to allot $15.00 from his pay, each month, under the Acts of Congress to be supplemented by an allotment from the government of $22.00 a month. It appears also that the grandparents of the child are willing to contribute to his support, if need be. Mrs. Ford testified that if the child became sick she would call in a doctor.

In proceedings of this kind the legal and moral rights of each of the claimants will be regarded, but the paramount consideration of the Court is the welfare of the child.

While the respondent of record here is the child's great-aunt, to all intents and purposes the contest is one between the child's mother and father. The respondent, Mrs. Ford, has the custody of the child at this time merely as his guardian while his father is serving in the army.

It is quite clear that a mother's right to the custody of her child is not superior to that of a father. Under Section 8638 of the Code (Act of 1923) neither parent has any right paramount to the right of the other concerning the custody of their child.

At the common law the primary right to the custody of a child is in the father, since the law requires him to maintain and support the child. Quite a number of cases in our earlier Supreme Court decisions state that the father ordinarily has the superior right even as against the mother. Ex parte Hewitt, 11 Rich., 326; Ex parte Reed, 19 S.C. 604; Ex parte Davidge, 72 S.C. 16, 51 S.E., 269; Ex parte Tillman, 84 S.C. 552, 66 S.E., 1049, 26 L.R.A. (N.S.), 78; Hartley v. Blease, 99 S.C. 92, 82 S.E., 991.

Though the character of the petitioner before this time appears to have been good the conclusion is inescapable that now she is not of good moral character. She openly admitted on the witness stand that without having received a divorce from her husband she has contracted marriage with Mr. Prickett and openly lives with him. The marriage certificate is before me. Ex parte Scurry, 114 S.C. 295, 103 S.E., 534.

There is, of course, no certainty that Mr. Prickett will continue to be willing to support the child. There is no legal obligation upon him to do so.

No doubt when the father returns from the war, if he does return, he will make proper provision for the custody of his child.

In my opinion it is for the best interest of the child that he remain with Mrs. Ford at the present time. If there should be a substantial change in circumstances, if the boy's father should not return from his war service, and if there should be a complete reformation by the petitioner this order would not prevent the matter being inquired into further. At the present time, however, I think that in view of all the circumstance it would be for the best interest of the child that Mrs. Ford continue to exercise custody over him while his father is away. I think that Mrs. Clardy, the petitioner, should be allowed at proper times to visit her son.

It is, therefore, ordered that the petition of Mrs. Pauline Thomas Clardy herein be, and the same hereby is, refused.

It is further ordered that the infant, Willis Daniel Clardy, be and he hereby is remitted to the custody of Mrs. Rufus Ford, the respondent.

It is further ordered that Mrs. Pauline Thomas Clardy, the petitioner, shall have the right at reasonable times during the daylight hours to visit her son.

PER CURIAM:

The circuit decree of his Honor, Judge Henderson, will be reported as the judgment of this Court. The exceptions relate to matters well disposed of by him, and they are overruled. It was said by counsel for appellant in oral argument of the appeal that after the hearing below of this case the appellant pleaded guilty in the Court of General Sessions of Greenville County to the charge of bigamy and was sentenced to two years probation. Section 1038-1, Code of 1942.

Affirmed.

MESSRS. ASSOCIATE JUSTICES BAKER, FISHBURNE and STUKES and CIRCUIT JUDGE J. HENRY JOHNSON, ACTING ASSOCIATE JUSTICE, concur.

CLARDY v. FORD