*1 (Estate McCausland, applicable that of Texas. was and not 568.) Cal. As satisfied that the law of we are Texas is as we have stated it, point discussing differentiating we see no the numerous additional cases cited us.
The orders are affirmed. Doran, Acting J., Drapeau, J., concurred. Aug. No. 7871. Third Dist.
[Civ. 1951.] Guardianship of the of BRENDA LEE Persons Estates al., CASAD, Respondent,
CASAD et Minors. RALEIGH Appellant. WILSON, ELOISE Ap- Jr., for Peckinpah Caporale, David E. and Louis W. pellant. Respondent. Ray
C. Robinson and V. G. Preston DEIRUP, pro tem. J. Brenda Lee Casad and Glenda Eloise Casad are the children the appellant, Mrs. Eloise Wilson, Casad, July R. Upon Glen who died on 1949. the death of their father the children became entitled to proceeds policy from a life amounting insurance approxi mately $3,000. Their grandfather, applied the respondent, persons application estates. His opposed by appellant. After a trial an order appointing respondent guardian, entered which this appeal taken. has been in 1939
The children were born and 1941 and were *2 age 10 and the time of the trial. In 1943 Glen E. entered the armed services of Casad the United States. He father, left wife and children with his the respondent, his mother, and his now deceased. Their home was in the suburbs spacious Appellant, Merced and was and comfortable. preferred however, town, live in apart to moved into an ment, paid by respondent. the rent of which was There entertained she service men to a considerable extent. There was proof improper no that she had sexual relations with excepting Wilson, them Charles J. to whom she is now married. She and Wilson affair, commencing had an 1944, in in which there numerous were acts sexual intercourse. E. interlocutory Glen Casad secured an decree of divorce on February By property 1945. agreement settlement which incorporated in the was decree the of the children days to their father for 30 awarded and then appellant to proper she home, secured a with an allowance of $75 a July In give month. the order was modified the father custody. Appellant did not find a home. On the contrary, immediately interlocutory after the King- decree she went to man, Arizona, join Wilson, lover, Charles her J. and lived him parts there and in other the United States as his June, 1945, wife from then on. In she and Wilson had marriage ceremony performed in Mexicо. There was no marriage July 19, 1949, until after the death of Glen B. December, Casad. A son was born to them in 1945. neglected
There appellant was evidence that children while she had them. On one or more occasions the children playing nightgowns were found about in their late morning, finding developed their own breakfast. of them One eczema, probably due to malnutrition. After she deserted gifts, them she sent them a few but to them she did write inquire excepting re- about them for one letter to the spondent, 1948, she August, which he did not answer. posi- returned California and in October Wilson secured August tion as a in Visalia. and De- watchmaker Between appellant briefly timfes, cember saw her children a few but attempt made no the death of further to do so until after July, only E. look at Glen Casad 1949. Then she could quarantine. under She made no further them, for were up to the of the trial. efforts see them time R but the children lived Casad was married in Glen nearly appellant time respondent all of the after with the They them, being more half lives. are left than adjusted happy want to remain with the re- well husband, spondent. Appellant present and her whom she July 18, 1949, a three-room house Visalia married on salary room. planning $300 are to build another His neighbors testified she and her a month. Friends and together happy and that she takes excellent care husband of their little son. proceedings
Findings filed of fact were appellant found unfit which the court to have the children. appellant objected the introduc At the counsel trial greater part of the evidence that we have referred tion of the being They remote. call attention to the rule that too fitness, always question one of and cite Guardian Cal.App.2d 141], P.2d ship Jones, 86 and Ott v. 896], past Ott, Cal.App. holding P.2d directly upon present it bears is immaterial unless misconduct *3 question no at all but that where the fitness. There is issue present Green, it is In re is involved one of fitness. of fitness ; Munson, 27 Munson v. Cal.2d 659 192 Cal. 903] [221 Prouty Prouty, 16 ; P.2d Cal.2d P.2d 268] only hold the trial 295]), but the cases cited counsel rejecting admitting in has wide discretion evidence being hearing upon too to have being or not remote value as as issue of fitness. bearing this case admissible on The evidence in as appellant, of the and warranted the court character appellant unfit to have the home, help Appellant and with the has a the children. support period for a them the estate the children able time, implied more that is in the term at least. But than fit a mother should have to raise children “fitness.” To can to be and normal character, she train them moral so that love, also not as a mere should have mother persons. She sentiment, It is that moral compelling force. true but as They occur conclusive. often lapses should not be deemed seriously parental But it does interfering with care. without join her that a mother deserts children occur often away years. stays them for We use the her lover and “desert” instead “abandon” because the word latter term to have do with implies anything an intent never a child again, appellant hope no doubt some day, did when her, get it became convenient she would them back. The fact that her character was such since 1945 that she could very years desert them feel little them interest and that she could live with Wilson and bear raise another marriage, without benefit of violate all the laws and customs that such a relationship. forbid The trial judge opportunity appellant had to observe on witness stand apprаise and record, her character better than canwe from a written even in the record flip-
but there are indications of pancy testimony and lack of moral stamina. Her indicated that she felt no remorse what she had done to her children she when deserted She said them. that in she was 26 pleased, old and apparently justifica- could do she conduct; of her attorney tion that her her after told interlocutory decree was entered was as that she free as the birds; thought marriage that she that the Mexican was valid— impression also she had the that a final decree of divorce necessary marry again. before she could She threw her away pursuit romance; children once we can have no again. assurance that she would not do so We do not know why she wants the children now. No there is a residuum doubt very of mother love. great It cannot be since it did not prevent deserting her from place the children the first her legal right or cause to insist her of visitation after Perhaps she back to would get came California. she like to money; girls might the insurance and the little be useful to taking boy. thing her in care of her little And is such a there saving face. opinion our amply the evidence sustains the order of However, appellant judge, the trial court. the trial insists that hearing remarks he made after his con- law, “That is for the interests and welfare clusion best minors, them, Raleigh of said and each that the said Casad appointed guardian persons and estates of said be minors, *4 each them” he took into indicated that account contrary welfare of the children and this to estab- the law. lished taken, exception judge The remarks of the trial to which are follows: simply
“. . I and see . look at all evidence the I what think is for these best two children. my jury sitting right and been a of twelve
“If there had they only the could have evidence, conclusion that heard the Casad, grandfather Mr. of the at is the arrived that with surely mother safe; with their children, the children are ways they they might go might again safe and the they be Judge the do, just is all can take go. That that a should and I picture at an unanimous conviction and arrive whole certainty.” uncertainty a am for take by con- judge the trial Insofar as the statements made made apply remarks which are cerned we must the impeach during or the the trial cannot be used end court. Such remarks are made without findings it must aspects case, all of the full consideration of findings, had judge, signing presumed be judge However, case, what the law in mind. in the children would be safe was that he doubted that the said custody might unsafe, mother of their mother. If be unfit. strictly in of the court was The conclusion of law trial 1406 of the Probate first sentence in section accord with the Code. lays following rules Code down the
The Probate appointment guardians: minor, guardian appointing general
1406. “In in- by best guided appears to be what respect temporal to its and mental of the child in terest age to if sufficient form an welfare; the child is of moral prefer- preference, consider that intelligent the court question. If resides determining ence years may nominate his age, fourteen he state and is over days guardian, his own accord or within ten own either -duly court; such nominee must being cited after guardian has approved court.. When a appointed age, fourteen appointed for a minor under been age, may nominate his minor, at time after he attains that guardian, subject approval to the Own cоurt.” equally persons respects entitled in 1407. “Of minor, preference is to be follows: “(1) parent; To a “ (2) one who was indicated of a deceased To wishes parent ; “ (3) already position To one who stands of a trustee applied support; of a fund to be to the child’s “(4) relative; To a
139 “ already If has been declared to be a of (5) ward court, probation the officer said juvenile the of court.” to parents claiming guardianship 1408. “As between the ad- other, versely priority; to each neither to is entitled but other being years, if the of things equal, child is tender it should be age if mother; require the it is of an to to education preparation business, for labor then to father.” the parent knowingly wilfully “A 1409. who or or, abandons ability to having do, the to maintain so fails his minor child years of age, right under fourteen forfeits all to guardian- the ship child; parent guardian of and a or such who knowingly permits year his child or ward remain for to one in an orphan asylum' where the child supported by is charity, without notifying managers asylum or of officers that he is or parent guardian, such abandons and forever all forfeits right guardianship to of child. The officers and man- any asylum agers orphan having of such abandoned child in preferred its have the care to the guardianship of the child.”
These sections were enacted in 1931. Insofar they in interest case are based on sections Code Civil Procedure 246 of the Civil Code, which repealed. were changes There were in wording purposeful statute which study by indicated Legislature provision and the in section applicable 246 which made custody proceedings as well guardianship as to was eliminated. However, significant a most change was in that made the first in sentence section 1751 was out. section, left That with the portion eliminated emphasized, read as follows: “The mother 1751. a minor child under father age years, hy competent the court of fourteen if found discharge guardianship, ap- the duties is entitled to he pointed guardian preference such in minor person. minor person by other age The nominated fourteen guardian, unmarried, as his whether married or may, by discharge competent found the court the duties appointed guardian. authority of guardianship, such be guardian extinguished marriage nor affected guardian.” that it established rule this state Apрellant insists is an age of 14 of a child under the can never that the welfare the court in a contest between a be all considered person unless the any necessary point, to discuss this unfit. found unfit. found the properly for the trial all cases form, applicable its bald But rule as stated- to do years old, is than 14 certain child is less where the many cases, and therefore injury to children terrible statutory not been relaxed question whether rule has change be discussed. should in an illuminat is laid down in its form
The rule absolute Campbell, 130 Cal. opinion in In re ing well reasoned quote pages and 383: We 613]. *6 independently provi- of the general law, “Under the and right the care father a natural to codes, sions the has of the 205; custody (2 Commentaries, Kent’s and of his child right Relations, 245-58); and this on secs. Schouler Domestic (Civ. Code, by sec. provisions of our codes recognized is the regarded 197; 1751); which to be are Civ. Proc. sec. Code the common law re-expression principles of as but a of the right, (Civ. 5). sec. The father’s governing subject. the Code concerned, is far services of the child at least so as the strictly right, for of in the case property a the loss which—as be gеnerally—an common law though of action could at servants right, not com- maintained; respects and in other the monly essentially the nature spoken such, of is of same as though subject right of For the the right property. the of salable, species property of it of valuable, and all a to parent. the Hence is mistake most valuable to the suppose merely fiduciary. It is right the of father is the that; right of it is also—like the the child the father— but - right benefit, and of which it a vested in him for his own - personal injury deprive right would him. The must be to regarded coming reason, within if not therefore be the provisions letter, within of the strict the constitutional protection parte Miller, Ex (Beatty, the of property. C. J. [643], 428].) Cal. 662 [42 however, obliga- right is, coupled “The father’s with the support (Civ. 196), tion to and educate the child Code sec. and qualified strictly by is also and limited the fact the being, child itself is human and as such vested .rights protection. for which it is entitled to Hence it is right clear duty state, and protection to extent the may require limit, and and control under cer- tain terminate, right circumstances father. Ac- cordingly, independently statutory enactments, of numerous equity always, by appointment courts of guard- ians otherwise, jurisdiction exercised a liberal over the jurisdiction minors; persons estates on which it rests— only by principle to be limited said rights of the child. necessity protecting namely, the ‘‘ general right question not relate to the here does But the chancery English by court as exercised state, of the special powers but to the equity country, in this courts of superior appoint for the by conferred the codes on purport to confer guardians. ment of These do acting special proceeding, all superior court, only the equity, but powers exercised courts of hitherto (Code Proc., power appoint guardians in certain cases Civ. (Code Proc., 1747), sec. and under conditions Civ. certain by these and the case is therefore be determined 1751); sec. By power of the court to provisions. the former section ‘of minors who have appoint guardians is limited to the case deed’; guardian legally appointed by no will or and the Code, prescribed same limitation is section of the Civil power latter section the section therein cited. dispose will of the of the of the expressly recognized; or deed this must be taken as dispose recognition general of the special example. but a of which it is legislature suppose For it would unreasonable to universally right, recognized intended to limit or restrict a *7 systems provided law, single in our own and all case of to for; regarded simply application which must therefore be as recognized principle.
“Accordingly, provisions 1751 of the of section Code duty appoint Procedure, is of the court to Civil it made the ‘if minor, or found the court the father mother ’ But competent discharge guardianship. to the duties of law, provision, general prima under this and under the presumption competent; hence parent is that facie appoint guardian, un- the court is not authorized to another as contrary. it to be construed less finds to the Hence the section is appointed if ‘if as it read that father mother is to be or ’, incompetent The found the court etc. fact therefore, was, competency incompetency of the father controlling question case; in is no as there point, findings insufficient to regarded on the as must be support appealed the ordеr from.”
It will noted that part be the rule is based on the of section 1751 of the Code of Civil Procedure repealed which was
142 That were reenacted. decision and statute 1931.and not nearly every prior case to 1931 in which a contest cited in parent stranger, such as a between Campbell In has been cited grandparent, was involved. re opinions Yet that insofar it is founded decision, since longer exists, on which no has no authoritative force. a statute in the decision that at common law the pointed It is out virtually chattel; that courts of parent owned the child rights being; chancery of the child as a human protected the superior was not in this state the but that chancery equitable jurisdiction of the courts which courts though interesting that, It to note other states have. adopted equity, Legislature chose common law we included protected child abrogate equitable principle which obliga- parent performance of his when the was remiss tions toward the child. young happens frequently that a leaves a it, years. pays very He little
with a relative attention virtually nothing helping encouraging it and does- toward giving feeling sеcurity a child has to have it the develop normally. not even con order As a rule he does support. Then, when becomes convenient tribute its toward property. the child he him, he the child as his To demands is, child, the true stranger. is a The foster to the parent’s a wife with parent. In the home there of her own whom she is bound to favor. emotional children likely profound and is shock the child certain to be to. society extremely damaging, especially complicated today. if has a Yet it has been held that we have fairly respectable decent home and a fair income and he is a powerless prevent him from reclaim person, the courts are ; (Estate 184 514 P. ing Akers, the child. Cal. [194 706] In re Guardianship Snowball, 444]; 156 240 P. Cal. [104 Guardianship Mathews, Green, ; 714 P. 192 Cal. [221 903] 503].) 169 26 P. Cal. [145 appellate have said that a few cases the courts impor primary is not a chattel and its interests are of P. (Guardianship Imperatrice, 182 355 tance. Cal. [188 of Hawkins, 30]; ; Guardianship 568 P. 183 Cal. 48] In Lee, Johnson, ; Matter Cal.App. re P. 435] these are 91].) L.R.A.N.S. But Cal. *8 [131 prevails in most of minority which which cases follow 306.) (39 jurisdictions. 32; 33 Cal.L.Rev. the other C.J.S. In re equitable The rule is illustrated in the decision In that case order N.E.2d Boсk, 186]. 280 N. Y. paternal a awarding guardianship to Surrogate’s Court of the mother was affirmed. One of their against claim uncle years old, the other two than 14 more minors was of the opinion: It is said under 14. were surviving parent that, prima facie, a it is true “. . . While children, particularly guardianship of the right a has yet all the circumstances they age, under are of tender when always promote will must be what consideration the chief circumstances of While the of the children. the best welfare strong in order to overcome particular must be a case yet right parent, where the cir- of the paramount so-called evidence, such the best particular ease cumstances of contain principle. guiding The infants must be the of the interests great young have so surroundings and associations of form the basis of their future outlook and so effect their prevent nothing should the courts from con- development that question presented. sidering aspects the human of the that, owing appears bar to the divorce “In the case remarriage mother, of the parents and the between the separated from the mother almost children have been com- years. pletely testified, for about four The oldest who feeling antagonism and a distinct aversion to exhibited stepfather. gleaned This can be even his mother testimony. printed Surrogate reading of his examined learn private the other two children to their wishes. To they these children into an environment which force strongly opposed unpleasant event would be so by very might develop- be attended serious results to continuity Then, too, breakup is the ment. there of the schooling which have had in Bronxville. In order to paternal willing break their change avoid this uncle his home to Bronxville. conclusion, therefore,
“We reach
Surrogate
power
appoint
paternal uncle,
was not without
Hans
Breitung, guardian
person
of the
well as of
property,
though
turpitude
no fault
even
or moral
was shown on the
n
part of the mother.”
Perry
Perry,
512],
two sources. that: provided (Stats. 115.) 5 it is 1850-53, In section ch. of his minor, living, and case of the “The father unmarried, being them- while she remains the mother decease business, own competent to transact respectively selves otherwise, guardian- unsuitable, entitled to shall be and not ship of the minor.” age of 14 that minor over provided further a
It age a minor under guardian and that may nominate a age he reaches the may guardian a after nominate law. much as our guardian- in 1872 the old adoption of the codes
Upon the provisions the basis of Code ship law was made Nowhere in Procedure, including 1751. section of Civil At same the child referred to. time law is the welfare Code, 246 of the section Civil Legislature enacted 1406 and will found in sections which now be provisions of provisions were based on These the Probate Code. 1407 of (1923 Code, 127. Draft, section Civ. New York Civil Field’s expressed Code, 246.) will noted that section § the welfare of the equitable rule in it made were inconsistent Its terms primary consideration. Procedure.' provisions 1751 of Code of Civil of section guide be the welfare of the child The enough express preference if old child was entitled a and the regardless of its intelligent in all eases and form an one persons against other preference age. had a entitled, given prefer- 1751 he equally while in section This competent. every person, if he was against ence as preferential merely right instead gave him an absolute right. of the had common law 1931 we
Thus until child under equitable right 1751 and under section more right in 1751 was law section 246. The common section excluding all children had the effect and therefore definite provision That 246. rights from the section under 14 repealed. the statutes Nowhere the law has been а child of and one any distinction between there other, years old nominate who is 14 than that one parent being anywhere to reference guardian. There no “unfit.” Incidentally, the latter word never “competent” or *10 appear in the statutes. did have had the that since we appears
It therefore exclusively has common rule been equitable rule and the law by followed, been on the The rule that has abolished statute. got common law we whole, by the never was that courts the chancery jurisdiction of the England for it included the from which, In re 252), pointed out in (5 courts Cal.Jur. equitable rule, rule. insofar Campbell, supra, applied the Our rule, has the common law as it was what been called repealed statutory been rule. The fact the statute has that Legislature that it was of to abolish indicates the intention the the insofar as it was based on statute. The fact that the rule repealed gave parent to Legislature the statute which the the preference Legis- that an exclusive leads the conclusion the any preference that the should not have lature intended given by than that also section 246 of the and Civil Code equitаble binding on be the courts. should Bock, quotations supra, Perry Perry, In The from re supra, apply indicate the attitude of the that the courts rule, statutory equitable which is now the rule in California. courts, following To illustrate the attitude of our the common rule, again Akers, we refer law Estate Cal. 514 of 706], In away that the had case mother been from years. for charges four There of were abandon- immorality they proven. ment and had not but been years by child was old and had been cared for one Mrs. by placed with whom it Shreve had been its father. That respect similar to the case was one we now have in to the age of fact that the child was about of the the Casad children by and had been deserted its mother and was a member of family. It was dissimilar in another that the mother in that be upon case was not found to unfit sufficient evidence while judge case It in that the trial this she was. was similar quote in the welfare of child. For that reason we interested opinion length page 522, emphasis from the added: at “The record reveals that the trial court made the order appealed theory largely, entirely, upon from that only purpose inquiry ‘the in an this kind is determine welfare, what best be done with the for its own question reputation, and the as to the character and fitness unfitness, kind, mother in a case of this seems to me important to be the most one.’ That was the attitude- of the court is evidenced trial further state higher ‘I ment: don’t law know than that this child people be eared for and it be who are willing support it, able have done that years.’ and shown that for these four now insisted respondent that, regardless counsel the erroneous palpably prejudicial admission of apart evidence and question of insufficiency support evidence to abandonment, appealed the order from should theory adopted by indicated affirmed do, trial court. This we cannot because it is the settled rule of care, law in custody, this state that and control of age minor child under must be com of fourteen parents, mitted to its strangers, rather than to unless shown perform the duties found unfit imposed by has, relation or abandonment custody. short, natural to its in a forfeited guardianship, contest here, between a a child *11 stranger paramount question a to the child, the the is competency parent the act guardian, and, as in the ab justifiable parent’s sence a incompetency, the appoint the court parent guardian must the despite the fact that the may perchance material the child be en welfare of by hanced committing its care person. to another (Code Proc., Civ. 1751; Code, sec. Civ. see. 3, 4; subds. Campbell, re 130 Cal. .)” . . 613] cited, Other cases are they, but too, are repealed based on the sections of the codes and the in In decision re Campbell, supra. pointed
As has been out, in a eases the few writers of the decisions accept have principle refused to the the that court may not consider the best interest of the but in most frankly the decisions it is asserted that the court lacks discretion do parent so if the is fit and has not abandoned though appeared it supra, Green, In re Thus the child. of the mother a half sister had been raised child happy home as one given a infancy had been from her, was fond of and that for her children other than no court had discretion held that it was just an Probably prevent such was to its mother. give it to upon which that the statute rights child abuse 1931 were based was stricken рrior to all of decisions the statute books. mandate to consider was under court before The parent of 14 if age a under the a child best interest against stranger or applied parent incompetent. to be was found unless guided by appears statutory to be "what mandate now under in respect temporal child to its for the interest of the to be best every case, mental moral welfare” without ex- ception. statutory course, preferences have, of in section
We applies This statute to children 1407 of Probate Code. every age. preference given has been said that the which is equivalent right specified to the exclusive of Civil former section 1751 the Code Procedure. But this interpretation implies contradicts the terms used. The statute person may equally (1) another entitled with parent, (2) or with one who was indicated wishes of a parent, (3) trustee, (4) or with a or deceased a relative (5) probation or officer, with the or be better entitled. Having in mind law that the welfare of the is the child primary consideration, stranger it would seem who years might had served as a well a better right duty than either the who had shunted his pеrsons given toward of the other who are priority rights. Clearly preference If relative would not be absolute. the relative were entire stranger successfully child he could not claim a equal to a foster parent that of who raised the A had child. justly up family court could not break of the child true solely relationship. because of blood preferences given by
On the hand the which are sec- tion 1407 of the Probate importance Code are of and cannot arbitrarily ignored the trial an abuse court without They preferences discretion. are natural which should guide if they court even were not inserted into statute guidance. for its *12 Especially preference case of complex of must considered parent factors be favor a relationship a One is that the intimate between the court. great parent importance is of to both. The and child disrupted danger emotional ties be without of serious cannot parent psychological damage parent to and child. The both right earnings legal has the to and to the child. family important system; in our is often called the ordinary family parent legal has sоcial unit. parent rights. legal obligations moral But the has and moral child toward the which are based on wel- considerations during century fare of the this it is the welfare increasing emphasis. of the that has received For child ex- ample, parent required school, to send the child to though right earnings. this limits the to services and For protection we developed juvenile of the child have system. parent A guilty neglect may court who is be de- prived year of the child may later he deprived completely parental rights. (Welf. all & Inst. Code, 700, 701.) Thus desertion and abandonment §§ have as they the same effect law have in fact, insofar as child is opinion concerned. The writer of this thinks that repeal upon of the statute which the common law rule was based and the restoration to the courts of the ensure the of the child is in welfare line purpose with the juvenile law, so that has ceased to serve long enough permit as such integral the child to become an family member of another happy, which it thrives and is necessarily does not back to the placed family. in an alien After has broken home of the once, the court should not be compelled by an ancient again law break its against home will, its probable its detriment. necessary argue has been point length because
there has part been obvious failure on the appellate of the courts in their decisions after 1931 to realize the effect repeal of the statute which our common law rule was based. The first principle case in which the is discussed is Stever, Stever v. 1229], Cal.2d 166 court, P.2d The trial in a action, divorce had parents awarded a child to of one parties without as to the unfitness of the parents. The case was decided in apparent but it opinion changes from the in section 246 of the Civil Code and section 1751 of the Code of Civil Procedure in the provisions transfer of their to the Probate Code were not *13 applied of the court. The the brought attention to the the earlier decisions in laid down that had been in including Campbell, supra, In re in matters, by the terms were bound the had held that which courts Newby, 114 1751, Newby Cal.App. v. 55 of section applied custody guardianship rule was 891], in-which the to Mathews, supra. Guardianship court relied on cases. The of opinion case, page In is said: the that provisions the of that, “It is under Section well settled of Procedure, father or mother the Code of Civil the 1751 of by of if found age years, a the fourteen minor child under discharge competent guardianship, the duties of the court appointed guardian preference is to be entitled person, parent seek- appoint and that the court must a incompetent, parent such ing appointed, to be unless it finds notwithstanding opinion of that the judge is child’s the the ’’ by giving it to another. promoted welfare health and Roche, 999], v. same
In P.2d the Roche Cal.2d [152 supra, question Guardianship Stever, v. arose and Stever opinion Mathews, supra, approval. with The also cited of quotes approval White, Cal.App.2d In from re parent a 706], P.2d the effect that custody only by a of a child “can be forfeited to the minor parent proof parent to have care upon unfit such dissenting custody.” opinion In a Justice Sehauer Mr. leading upon In case suggests Campbell, supra, re that rely it, subject, disapproved, which should be the cases on regarded a and the in that the child is chattel “somewhat property parent paramount made interest thеrein of the best interests of the child.” He overlooked the fact that only by In Campbell were, the decision in re the courts deprived juris Procedure, of the Code of Civil section 1751 equitable rights make child as a human diction to being superior rights who had vio property there is obligations his toward the child. It follows that lated in that ease. has disapproving no need for the rule stated Legislature repeal disapproved section been interesting opinion merely treatise on the 1751. The in that subject However, of an obsolete law. the actual decision Code, on 246 of the Civil case could been based section have custody subject gave parent preferential right to the which contesting A child. father for the to the welfare 2-year-old custody against grand- its maternal child parents. question No duty violation of was involved nor neglect such that the restoration of to the father damage psychologically. would Without preferential right had lost his because of his con duct, properly deprived the court could him custody. right of Stever, supra, So Stever v. Roche Roche, supra, necessary it was Supreme for the Court tо rely repealed on the statute or the in which its cases harsh binding. preference given terms parent by were held require sections 1406 and 1407 of the Probate Code should finding by court, the trial based evidence, sufficient conduct, had, his rendered himself relatively unfit to have the view of obvious of its welfare. consideration Roche, supra, Roche v. decisions handed down Appeal after 1931 are approval.
District Courts of
cited with
*14
Cal.App.2d
In
Eddlemon,
Eddlemon v.
27
343
P.2d 1009],
[80
involving
mother
a contest between a
and a grandmother,
custody
the
was awarded to the mother. There
proof
was no
finding
of
prejudice
unfitness in the mother or of
the
In
White, supra, again
child.
In re
proof
there was no
that
prejudiced
welfare of the child would be
by returning it
separation
to a
after
of brief duration.
In Guard
ianship McCoy,
Cal.App.2d
46
103],
494
P.2d
[116
of
nothing
court found for the
and there is
to indicate
that
award was
not for the best interests of the minor.
Juri,
Juri v.
61 Cal.App.2d
708],
815
P.2d
involved a
[143
parents.
contest between
In Guardianship
Ruff,
De
38
of
Cal.App.2d 529
521],
P.2d
the award of guardianship
[101
of a child to
grandmother
the maternal
rather than to the
reversed,
being
mother
finding
was
there
no
that the mother
or a
unfit,
why
of
other reason
shе should
custody.
not have
In Guardianship
Sloot,
862], there were no facts that indicated that the mother was preference entitled to a appointment guardian in the of an infant child. necessity applying the old rule in its extreme form in all Booth, eases was denied in Booth v. 69 Cal.App.2d 93]; 496 P.2d and in Robertson v. Rob [159 ertson, Cal.App.2d 72 52], 132 P.2d it is said that: [164 “We do not construe said rule only to mean that cases where the lodged a child per a third son are those wherein it has been shown that discharge unfit In trust.” Becker v. Becker, 94
151 discuss 598], the court refused to P.2d Cal.App.2d the Code of Civil repeal of section the effect repeal that, “since the reason Procedure ’’ consistently followed. And Shea has been same 32], is said: Cal.App.2d 60, P.2d Shea, 100 “ the courts that presumption stressed . The . . respect temporal, mental its of the child best interests by giving its always can be subserved and moral welfare or does not wish parent whom the court cannot ato having which, one been de- unfit, fallacy, is a but to declare we, court, an intermediate Supreme Court, as fined opinion in 33 Cali- continue.” articles compelled to Re- 19 Southern California Law Law Review fornia stating the “modern” rule view are referred jurisdictions. prevails misleading. “rule” is we are
The term somewhat What laws. as a part We received of the common concerned with chancery protect law that courts of would the law parents performance were remiss in against they its obligations. Campbell, out re pointed It is in In deprived power our supra, that courts were Code provisions of section 1751 of the of Civil Procedure. before the court was the construction of a What was statute parent ownership regardless which ensured of the child ap- appellate usually Since then the its welfare. courts plied literally, the statute but did establish a “rule” repeal survive which could The courts statute. by any number could not of decisions restore the statute which Supreme repealed. true that the Court in Stever v. Roche, and in supra, supra, Roche v. Siever, overlooked the repealed fact the statute had been and that the decisions *15 in the statute had been which effect mean no more than any authority does insofar as it construes obsolete statute. by an intermediate and is Supreme This is bound they insofar hold decisions that a child Court cannot be parent taken from the immediate without a parent finding Supreme that the is unfit. But the Court did before it a factual not have situation all similar to the one present in case. It did not decide become to have the unfit child because of deser- appears clearly it tion, if be better off would by of a foster parent the home whom has been raised. it appellant In the case the the children deserted they necessary reasons of which no doubt aware. It are readjusted grand- home of in the for them to become they arc a comfortable home which parents. They have step- mother They and their happy. are hostile toward their go half force them to into a father brother. To and the little strangers among and live would involve crowded little house Breaking psychological a terrible shock them. continu- ity infant, life of other than an of the emotional is very likely damage. is thing; a serious to cause serious is kind of does so serious that the not want If appellant do had been controlled love it. real kept children she in touch need would have with them away while she and when she returned she would up tried to them for had make what she done to them. She sought they would not have to take them back until wanted to come. The that she force them into fact wished to a dam- aging psychological environment, it, knew she or the fact it, that she did know should be taken as evidence unfitness.
While fully justified we believe that the trial court was appellant yet unfit, to be the writer of this opinion important feels that it that the law is or rule which applicable brought up cases this sort be As date. juvenile court, guided court should be what appears to be for the best interest respect child in temporal its and mental and moral welfare and its emo- psychological tional and judge environment. The trial knows very well ordinarily that children should be left with their parents. judge The parents trial sees the children with their faults and their virtues and can determine what should be greatest done good They of all concerned. are not parents children; fictional be- human ings. Once in a' while he will his abuse discretion and be reversed appeal on but on the right. whole he will be And encouraged should not be to believe that he has a legal right to desert his child purpose and serve no pre- paring it successfully to meet happily world then, at convenience, his custody against demand its its will. judgment is affirmed. concur DYKE, J. judg
VAN I in the affirmance of ground forepart I ment. do so stated opinion pro Deirup, tern. find Justice that the trial court’s ing appellant guardian unfit to act supported *16 binding upon this court and therefore is evidence substantial unnecessary that renders of the record appeal. on That state of the discusses the soundness part opinion which of the refused to a custody can taken from or rule before that unfit it. must be there statutory change pointed occurred, had After the out binding Supreme rule reaffirmed Court and is was Any come from that us. relaxation must Legislature. court or
ADAMS, P. J.—I dissent. my opinion
In the trial abused discretion in mak- its ing paternal grandfather guardian persons girls little refusing these and such to their mother. grandfather was, at the time
The evidence that shows October, years age, and hearing 1949, these years respectively. old Their own children were 7 and dead, Raleigh Casad, was grandmother, former wife of wife, age, place. and a second had her The' taken father of the children was also dеad. There evidence was no girls living the mother these was not at that time respectable a normal and life with her husband and infant son, girls. her home place not a fit for her was finding of solely upon unfitness the mother was based alleged improper misconduct her husband which begun prior had some time divorce action instituted by her former husband, prior Casad, Glen to the execu- spouses tion agreement February the former of an 8, dated which incorporated was interlocutory into the decree granted when a divorce February was to Glen Casad on agreement 1945. said it was recited that there was no community property and agreed it was husband should have the care and of the two children for 30 days, and that thereafter the wife should have such care and custody provided proper had a adequate she home prop- erly to care for said children, and that at such times as such home provided was not the husband should have such care provide such home. alimony No pro- vided for Mrs. Casad, but agreed pay the husband her per $75 month for the care of the children when in the wife’s custody. Mrs. Casad was nothing proceeds but the sale certain furniture in the sum of $200. The fore- going provisions incorporated were in the divorce decree. military then service,
Glen Casad
which he
had
voluntarily joined
being drafted,
before
and his
wife
children had been left
him in
paternal
the home of the
*17
Obviously
grandparents.
Eloise Casad, who
poor
was then in
health, was without a home of her own into which to
her
take
daughters, and with but
and
promise
$200
per
but $75
support
month for the
children
was confronted with a
impossible
condition then
of fulfillment.
It
is or should be
understandable
that she turned to Mr. Wilson
refuge
understanding,
joined
him in Arizona. He
inwas
military service,
and it is undenied that he took her to the
parents
home of his
in Missouri who took her in and cared
for her and where a son was born to her. And while she
admitted that thereafter she and Wilson
together
lived
as hus
band and wife, there is no evidence of misconduct other than
the fact that their cohabitation was without
the sanction of a
marriage ceremony. There is no evidence
her
that
conduct
any
promiscuous,
sense
was in
the conduct of that
couple
legally
was other than that of a
married couple, or
there was more than a continuatiоn
an intimacy begun
prior
agreement
some time
between Casad and
wife,
his
and while Casad was absent from
family; and
his
she testi
she
her
fied that
told her husband of
love for Wilson and a
desire for a divorce before the suit for divorce was filed.
prior
Under the law of this state
to 1895 the conduct of the
Wilsons, at least after the
became final,
divorce
would have
recognized
constituted a common
marriage,
law
valid;
marriages
recognized by
such
are still
law in some states.
(See
originally
Civ. Code 55 as
adopted. Also
see Sharon v.
§
Sharon,
White v. White, 82
345];
75
1Cal.
P.
[16
Cal. 427
276,
Shortly after the death of in July, Glen Casad 1949, Wilson and Mrs. Casad were married under auspices they Catholic Church of which They are members. had already established modest home in Visalia, California, employed where salary Wilson was at a per $300 month. July 20, Raleigh On 1949, Casad petition guard- filed his ianship persons and estate of the two children, consisting estate $3,000, proceeds of a life insurance policy left Glen Casad. Mrs. Wilson then filed a similar petition seeking guardianship. the hearing On of the two petitions showing no whatever any was made as
155 daugh- her have the unfitness of Mrs. Wilsоn to testimony by contrary persons there was three ters. On the Visalia, Wilson in her Mr. one whom was who knew neighbor, the effect that had known Mrs. a next door her home year, frequently, for over a had visited had Wilson keep observe her a home opportunities had fitness housekeeper child; her third she was excellent and a good mother; and kind and that had she overcome mis- past in her takes she have made life. grand is well established that between and a stranger involving custody the latter is a an action (Roche 25 144 Roche, 141, v. Cal.2d P.2d 999]; Robert [152 Robertson, Cal.App.2d 129, ;
son v.
P.2d
[164
52]
Cal.App.2d
Becker,
Becker v.
598]),
P.2d
[211
him
and as between
and the mother of these
her
children
rights
paramount.
(In White,
re
ing which
unfavorably upon
reflects
the recent conduct of
Wilson,
Mrs.
or
incompatible
is
with a conclusion that if she
erred,
once
she has
Prouty
rehabilitated herself.
In
Prouty,
v.
16
190,
Cal.2d
194
295],
P.2d
[105
court said:
“The
question
parent
as to whether a
is a
proper person
fit or
custody
have the
of a minor
refers,
however, to
or
his
her fitness at the time
hearing
necessarily
and is not
of
many
controlled
conduct
prior
(Ott Ott,
thereto.
v.
156 and not former misconduct
The rule that fitness Corpus 67 custody cases as stated in Juris should control time 662, is: “A who at the when is, Secundum competent arises, person to have the question suitable custody be refused such child will not because conduct, habits, cir past health, his at some time he have been were such that would not then cumstances page is said 661: “A proper Also it custodian.” custody of a child of may be denied the because bad moral reputation. The immorality, however, character or must be of gross so a character that morals of thе child would be seriously endangered, proof lapse from moral stand parent’s does ards or of one immoral not conclude the act right.” holding cases Other California fitness of hearing time of is proper apply at the test to Guardianship McCoy, as this are 46 Cal.App.2d cases such of ; Guardianship Jones, 494 Cal.App.2d P.2d 86 103] [116 141]; Green, 37 P.2d In re 192 721 Cal. P. [194 [221 903]. jurisdictions
Cases from other
follow the same rule.
Cooke,
Cooke v.
67 Utah
83],
371
P.
court said at
[248
page
general
“In
country
102:
spouse,
that a
though
adjudged guilty
found or
adultery,
not,
will
.
reason, necessarily
deprived
such
care
(Haskell
his or her children
v.
Haskell,
Mass. 16 [24
parte
;
Lincoln,
N.E.
Ex
;
La. 278
So.
859]
[54
818]
Brogna
Brogna,
1];
Wash.
P.
Richardson v.
Richardson, 36 Wash.
especially
920]), and
where
it is shown that the
ceased,
adulterous relation had
or would
repeated,
or the
morals
child or children not
thereby. And such
statute,
effect of our
under
affected
which,
Canada,
different from the laws of
mother,
in case
separation
wife,
father,
husband and
instead
paramount right
to the care, custody, and control
(Italics by
minor children.”
court.)
In Vanover v.
*19
Johnson,
Ky.
201
302
S.W. 422], it was held that the
[256
girl
mother
child,
of a
who had been
remarried,
divorced and
custody
should
bе
against
denied
paternal grand
its
parents, because she had
adultery during
committed
the first'
marriage, where her
complete
conduct showed
reformation.
In Woolston v. Woolston,
157 Geismar, And v. father. in Geismar N.Y.S.2d their mother, of a which were said not to be 747, infidelities notorious presence children, or in of the were held insufficient custody justify deprivation her her children. Also Martocello, ex rel. Martocello v. see Commonwealth Pa. Super. 855, 856]; A.2d ex Bock v. Commonwealth rel. Bock, Pa.Super. A.2d In the latter case 133]. finding the trial court refused make a the mother guilty adultery, saying was it did proper not seem custody controversy. interests the child whose was in But it said adultery not, conviction of would itself, render custody her unfit have of her child. grandfather
While the may give be able to to these infants greater material advantages, this said In White, court re supra, page at right that: “The of a to the care away child merely cannot taken because the court believe that person some third give can greater better care and protection. ofOne the natural rights incident to parenthood, right supported by law and public sound policy, right is the to the care and custody of a minor only can forfeited upon proof is unfit to have such care and ’’ custody. language That quoted approved in Roche v. Roche, supra, at page 144. Also, see, Robertson Robertson, supra, page 133. proceeding before us the
While court did find that proper person not a Mrs. Wilson is fit her daughters, and control of little that conclusion was based testimony upon past events most of which dealt with events interlocutory prior to the divorce decree agreement and the parties February, 1945, which were known to the doubtless, were, husband and made known to the court at petitioner that time. The evidence relied Raleigh shows that began Gasad intimacies between the Wilsons 1944; and, as to the that when Mrs. Wilson had the children with her in 1944 she failed to care properly, for them solely upon testimony based .this is of Mr. Casad that when he called at morning her home one he found the children night around in clothes, and their mother still in bed; testimony and his further that one of the children had eczema, he which attributed to lack proper diet, though there testimony support no medical it. But be that may, as it it did not deter either agreement Glen Casad in his or the the divorce decree, from awarding the children to *20 hereinbefore There Casad,
Mrs. under the conditions stated. except of being no of Mrs. Wilson evidence unfitness living been inferred from her such have conduct in him, the with Wilson unmarried to trial court must while have of unfitness conduct some five based its my opinion evidence such should prior thereto. prior of admitted, particularly that conduct to the been Nor I consider it is or decree. do that interlocutory divorce girls they little interests of these that best can companionship young of their mother love and deprived of the stamped mother their forever be that the character and young that a puritanical notion woman whose as immoral. mandates of the “double conform with the does not conduct after should forever bear scarlet of morals standard” language to paraphrase And used is outmoded. letter 207], Cal.App.2d P.2d People Mangum, and social have altered conceded that habits customs must bе many re- origin that, so mentioned, since grotesque A would be a anachronism. spects, application its the children generous more attitude toward as well their forget past, restore, be to and as far as mother would relationship chil- the normal between and possible, girls by unnatural that these little be raised dren. It is dependent upon aging grandfather, particularly since, inexorability time, capable he will less and less become them; fulfilling the duties of mother and father to and in children reach ma- the event of his demise before these their jority strangers be left and alienated from their will strangers. dependent upon support and mother and care opinion Judge Deirup in the that As the assertions (he she Mrs. Wilson “deserted” her children concedes that them) away did not “she threw her children abandon pursuit romance,” my opinion they unjusti- once by case, fied in the as is the “Per- evidence statement that haps get money; she would like to insurance and that the girls might taking little be useful her in- of her little care boy.” The evidence shows without contradiction that at the time Mrs. left went Arizona, Wilson California and these were, children court, order the divorce father, obviously of their and that she was unable to secure them; a home for herself into take attitude which unfriendly; shortly the Casads toward her legal custody thereafter girls of the little their father another decree of the divorce court. Under said have deserted them these circumstances she cannot be did not assertion California, because she remain in that she did not thereafter evince them contra- interest 1945, 1946, to time in from time dicted evidence gifts remembrances, some she sent them 1948 and 1949 accept and did not custodians refused to which *21 physically or acknowledge. condition, no either She was legal no respect, do much in that and under financially, to support. when obligation contribute to their And she purpose asserted returned to California objections children, seeing her she met grandfather. father, death, after from their And and, his regarding the aforesaid reference to Mrs. Wilson’s desire to “get money,” prefer the insurance she stated that she would appoint company that the court should a bank trust act guardian of the children’s and that estate she was interested guardian same, children alone. But even if she were money the children’s would not be hers expend, but would subject supervision. And, to the furthermore, court’s she not Ealeigh did seek until after Casad had filed petition asking appointment. his And assertion that perhaps girls Mrs. Wilson wanted her take care her little boy purely gratuitous. fanciful and
Finally, as was said Geismar, the court in Geismar v. supra, pages question 755-756: all, “Above here, as already observed, is not one of abstract but morals, rather whether the mother’s indiscretions been such as to affect her custody; whether the welfare the children has thereby. been or will be harmed vengeful law is not so punish as to the children through their mother. ‘‘ dealing Since we are with humans and not angels, we must take human frailties into account. Granted that the mother still, is not perfect, imperfection is not unfitness. And if we rejected anything, of flawlessness, quest short our would have go beyond higher than this earth. . . .
.“. . This is not action, a divorce calling branding for a with the scarlet letter. For the Court to monious or puritanical attitude assume sancti- would be realistic; practicalities would meet the presented. system here A justice compassion not seasoned with understanding unjust. would be A blind easting merciless of the first ’’ stone is not the mission of the law.