Opinion
In this proceeding petitioner Dolores L. seeks by writ of habeas corpus to have her four-year-old son, Richard M., returned to *787 her custody. Petitioner alleges that Richard M. is an illegitimate unmarried minor, that she is entitled to exclusive custody and control of him, that he resided with her until October 31, 1973, at which time respondent Jesse H., the child’s natural father, wrongfully detained him, and that Jesse H. continues to restrain the child unlawfully and against petitioner’s wishes.
In his return to the order to show cause issued in this proceeding, respondent alleges that he retains custody of the minor pursuant to a valid and subsisting order of the Sacramento County Superior Court awarding him permanent custody of the child, that said order was entered after an evidentiary hearing at which the superior court determined that he had legitimated Richard M. and further found that the child’s best interests required an award of custody to the father, that said order is res judicata as to the factual issues tendered, tried and decided, and that no errors of law were made by the superior court in issuing its order.
On November 9, 1973, and prior to the instant proceedings, petitioner (hereafter mother) filed a similar petition for a writ of habeas corpus in the Sacramento County Superior Court. On November 12, 1973, that court issued a writ commanding respondent (hereafter father) to appear with the minor. In his return to the writ of habeas corpus, the father alleged that he had legitimated Richard M. pursuant to Civil Code section 230, 1 and requested that he and his wife be awarded custody of the child.
An evidentiary hearing was held which disclosed the following facts. Richard M. was born on July 18, 1969, the illegitimate son of Dolores L. and Jesse H. The mother and father were not then, nor have they ever been, married. However, the father immediately acknowledged that the child was his and continued to do so thereafter. 2 At that time he was not living with Dolores L. but in his own home where his mother (the child’s grandmother) also resided.
*788 When the mother and child were released from the hospital, the father brought them to his house, and they remained there for about a month. The paternal grandmother was aware that the infant was her grandchild, and during this period she and the father helped to take care of the child. Subsequently, the mother.returned with the boy to her own home, where she resided with her three other children.
Thereafter with the mother’s full knowledge and consent, the father saw him frequently, both at the mother’s home and at his own, where the boy often spent weekends. At the age of four months, he was baptized as the child of Dolores L. and Jesse H. in a church ceremony at which the father’s brother and sister were named as godparents.
On November 20, 1971, the father married. The child visited him more frequently and for longer periods of time. As a rule, his wife would pick up the boy every other week and bring him to his father’s home for three to four days at a time. On several occasions these visits were for longer periods.
Despite his apparent financial ability to do so, the father made no payments to the mother for the boy’s support. She relied upon state welfare benefits to maintain her family. However, the father did assume full financial responsibility during the time that the child was in his custody, and at these times bought him clothing, food, medicine, and toys.
After one of these visits in October 1973 the father and his wife failed to return the boy to the mother’s home. Disturbed by the mother’s apparent neglect of the child, the couple decided to attempt to obtain permanent custody. As a result, the mother commenced proceedings in the superior court to have the boy returned to her.
At the close of the evidentiary hearing, the superior court specifically found that the father had publicly acknowledged the boy as his own, had received the child into his family both before and after his marriage, with the consent of his wife as well as of the child’s paternal grandmother, and had otherwise treated the child as legitimate. On this basis, the court determined that the father had legitimated the boy pursuant to section 230 and therefore had custody rights equal to those of the other parent. »
*789 The court referred the case to the office of the county marriage counselor for preparation of a report on the issue of custody and ordered that pending the report the child remain in his father’s custody. On January 21, 1974, the court, after considering the recommendation of the report in favor of the father, concluded that the best interests of the child required an award of permanent custody to the father, subject to the mother’s reasonable visitation rights. The court made its order accordingly.
The mother thereupon sought a writ of habeas corpus in the Court of Appeal, making the same allegations as she had asserted in the superior court proceedings. The Court of Appeal issued an order to show cause, a writ of habeas corpus ordering the father to deliver custody of the child to his mother and finally an auxiliary writ of prohibition restraining the superior court from enforcing its order. We granted a hearing.
I
We first dispose of a preliminary matter. Since the trial court made factual determinations in the earlier habeas corpus proceedings, we must decide to what, if any, extent we are bound by them in the proceedings now before us. As we have apparently never spoken on this question, we proceed to describe in some detail the treatment given it by our Courts of Appeal.
It is well settled that a person entitled to the physical custody of a child may enforce his right thereto as against one wrongfully withholding the child by a petition for writ of habeas corpus.
(Ferreira
v.
Ferreira
(1973)
If the petitioner pursues this course and the superior court denies the writ, its decision is nonappealable.
3
(In re Bruegger
(1928)
Nevertheless, appellate courts have long recognized that where habeas corpus is used to assert custody rights, rather than to secure relief from confinement resulting from criminal prosecution, “ ‘both principle and considerations of public policy require’ ” that the superior court’s determination of the issues be given some weight.
(In re Holt
(1917)
Courts first applying this principle relied upon the doctrine of res judicata and refused to allow a petitioner who was unsuccessful in the superior court to maintain a subsequent proceeding of the same nature in the Court of Appeal absent an allegation of change in circumstances. (See, e.g.,
In re Stratton
(1933)
For this reason, appellate courts recognized an exception to the general rule giving full res judicata effect to a superior court order and held “that the order denying the writ is not res judicata in the broad sense that it bars further proceedings for the custody of the child, but in the very narrow sense that a petitioner for a writ of habeas corpus
*791
cannot, in the District Court of Appeal, again litigate the issues of fact decided in the superior court unless after the hearing in the superior court there is a change of the circumstances which affect the right to custody; nor does a decision by the superior court, which constitutes merely a decision of a question of law rather than a fact, bar the petitioner from presenting that same question of law to the District Court of Appeal upon an application for a writ of habeas corpus filed in that court.”
(In re Croze, supra,
Included within this category of questions of law is the determination of whether there is substantial evidence to support the trial court’s findings of fact. (6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 209, p. 4200;
Foreman & Clark Corp.
v.
Fallon
(1971)
This appellate court policy of according limited effect to prior superior court determinations is an excellent accommodation of the interest of the petitioner in securing a proper resolution of the legal issues tendered, the intérest of respondent in avoiding the harassment of multiple hearings on identical factual issues and the interest of the state in judicial economy. It gives the trial court primary responsibility in the performance of the task for which it is best equipped—namely, the resolution of questions of fact—and narrows the function of the appellate court to that of final arbiter of questions of law. Following this procedure, we limit ourselves in the instant case to reviewing alleged errors of law in the superior court determinations.
II
We-turn to the merits. In seeking habeas corpus relief in this court, the mother contends that the trial court erred in finding that the father legitimated his son pursuant to section 230. In particular, she asserts first that the father never received the boy into his family, as required by statute, since she never consented to relinquish custody of the child to him. She claims that the mother’s consent and relinquishment of custody are conditions precedent to legitimation by the father under section 230. Furthermore, she argues, the father did not satisfy the statutory *792 requirement that he otherwise treat the boy as a legitimate child since he failed to make payments to her in support of his son, although financially able to do so. Having thereby established the boy’s illegitimate status, the mother asserts that under California law she has the sole and exclusive right to custody of the child, the father having absolutely no parental rights. 4 On this basis she claims that the trial court erred in awarding custody to the father, even though such award was based upon a proper consideration of the boy’s best interests and, supported by substantial evidence, would be immune from attack if the child were legitimate. Finally, she contends that section 230 may not be used to deprive the mother of an illegitimate offspring of its custody if she does not voluntarily relinquish the child.
In support of the superior court’s order, the father points out that the determination of whether a father’s conduct is sufficient to legitimate his child under section 230 is a question of fact.
(Estate of Baird\ supra,
We initially consider the question of whether the father’s conduct with respect to his son was sufficient to legitimate the child pursuant to section 230. Under this statutory provision, the natural father of an illegitimate child may legitimate his offspring by publicly acknowledging the child as
*793
his own, receiving it into his family (with the consent of his wife if he is married), and otherwise treating it as if it were legitimate. (See fn. 1,
ante.)
Legitimation by the father changes the status of the child to that of a legitimate offspring. (§ 230.) Thereafter, the rights and obligations of both child and parent are the same as if the child had been born legitimate.
(In re Navarro
(1946)
Because of the stigma and unfavorable legal treatment that attends classification of a child as illegitimate, California courts have almost consistently held that section 230 must be liberally construed in favor of finding legitimation.
7
(Guardianship of Smith
(1954)
In the instant case, it is undisputed that the child was bom illegitimate, that Jesse H. is the father and that he has publicly acknowledged his paternity. The only contested matters are whether the father received the boy into his family and whether he otherwise treated him as legitimate within the meaning of the statute.
The question of whether a natural father has “received the child into his family” is perhaps the most frequently litigated issue in cases involving section 230 legitimation.' While numerous courts have attempt *794 ed to give meaning to this concept, no single satisfactory definition of this phrase has been fashioned. However, several general principles emerge from the decisional law in this area.
First of all, the term “family” as used in section 230 has been very broadly defined and is by no means restricted to the traditional notion of a husband, wife and children, or even close blood relatives of the father. Rather, the statute at most requires that the father “have a ‘home,’ a settled place of habitation of which he is the head, into which he.. . . receivefs] the child . . . ,”
8
(Estate of Gird, supra,
California courts have generally adopted an equally liberal interpretation of the concept of “receiving” as used in the statute. This requirement is satisfied by evidence that the father accepted the child as his own, usually demonstrated by an actual physical acceptance of the child into the father’s home to the extent possible under the particular circumstances of the case. Thus the father receives the child into his family when he temporarily resides with the mother and child, even for a very brief period.
(Hurst
v.
Hurst, supra,
The statutory receipt requirement is also fulfilled by the father’s acceptance of the child into his home for occasional temporary visits. In
Estate of Peterson
(1963)
Nor have the
courts been
strict in insisting
that the
child be actually physically present in the father’s home; a constructive reception may suffice.
9
In
Estate of Maxey, supra,
Applying these principles in the instant case, we find ample evidence in the record to support the trial court’s finding that the father received the child into his family for purposes of section 230, both before and after his marriage. It is undisputed that the mother and the child resided with the father for two weeks to one month after the boy was bom. During this time the father and the boy’s paternal grandmother helped care for the infant. Thereafter, the child generally spent every other weekend at his father’s home. Subsequent to the father’s marriage, these visits were apparently extended to three or four days, and *796 occasionally continued for longer periods of time. Not only did the father’s wife consent to receive the child into their home, but she picked up the boy for most of his visits. In light of these facts, we find that the father’s conduct was more than adequate to demonstrate his acceptance of the boy as his own to the extent possible under the circumstances and therefore.clearly fulfilled this statutory requirement.
We are not persuaded by the mother’s argument that her consent and voluntary relinquishment of custody were conditions precedent to the boy’s reception into his father’s family. This interpretation of the requirement of section 230 finds no support in .the language of the statute, conflicts' with the overwhelming weight of authority and is against public policy.
Examining the language of the statute, we note. that it does not mention the natural mother, does not require her consent, and does not indicate that the father must acquire custody of the child. Nor do we find any basis for imposing this added burden upon the father’s ability to legitimate his offspring, particularly in light of public policy favoring legitimation.
(Estate of Lund, supra,
It is on these grounds that the great majority of courts which have considered this question have refused to adopt such a narrow definition of the term “receiving.”
10
In expressly rejecting this construction, the court in
Estate of Peterson, supra,
Those authorities which purport to define the universally accepted interpretation of this phrase in states having such a statute declare that “the consent of the mother of the illegitimate is not a necessary element of the legitimation in this manner. [Fn. omitted.]” (10 Am.Jur.2d, Bastards, § 53, p. 882; see also Annot., Bastards—Recognition—What
*797
Constitutes,
In maintaining her position, the mother relies upon four California cases which contain language supportive of the interpretation she proposes. However, an analysis of the facts of these cases indicates that her reliance on them is misplaced.
Adoption of Irby, supra,
In
Cheryl H.
v.
Superior Court
(1974)
The mother directs our attention to the one case with facts similar to those at bar, in which the court found that the legitimation statute had not been satisfied. In
Adoption of Pierce, supra,
Nevertheless, the Pierce decision is not determinative of the issue now before us. In Pierce the Court of Appeal merely upheld the trial court’s finding as to this requirement, noting that “[t]he conclusion reached by the trial court that there was no ‘legitimation’ prior to the inverse paternity action can hardly be questioned, let alone upset, as an improper determination of the conflicting evidence.” (Id, at p. 248.) Similarly, the trial court in the case at bench found on the basis of substantial evidence that the father did receive his son into his family for purposes of section 230; no grounds exist for overturning this determination.
It is also noteworthy that in each of these four cases, “[t]he resolution of the issues . . . [therein did] not require the application of the policy of the law which favors legitimation, since in any event the child . . . [would] be legitimated, either by acknowledgment by its father under Civil Code, section 230, or by adoption . . . .”
(Adoption of Irby, supra,
To the extent that
Cheryl H.
v.
Superior Court, supra,
We encounter even less difficulty in upholding the trial court’s determination that the father treated the boy as if he were a legitimate child. Once again, there are no hard and fast rules establishing specific standards which must be fulfilled in every case. Rather, “[e]very man furnishes the rule by which he must be measured.”
(Blythe
v.
Ayres, supra,
In determining whether this requirement has been fulfilled, courts look for conduct manifesting the father’s desire to establish and maintain a paternal relationship with his child. As a general rule, conduct which satisfies the acknowledgment and receipt requirements is also adequate to fulfill this final statutory mandate.
13
“If the father has publicly acknowledged the child to be his child, and has taken it into his family, it would seem but little remained to be done to wash away forever the stain of bastardy. The public acknowledgment of the child is the main fact. It is the important factor, in the eyes of the statute. If the child was publicly acknowledged and received into the family, it would be a novel case where a court of equity would close its doors and refuse to declare a legitimation .... That case has not yet arisen; and it is hoped and believed it never will.”
(Blythe
v.
Ayres, supra, 96
Cal. at p. 580; see also
Estate of Wilson, supra,
In
Estate of Peterson, supra,
In the instant case, the father’s conduct manifested a sincere desire and attempt to treat the boy as his own. He acknowledged paternity to his family and friends. From the time the child was bom, he participated in caring for him and administering to his needs. He regularly took the child into his home for frequent visits, both before and after he was married.
*800 The mother points out that the father never paid her anything for the boy’s support; however, this fact alone is not determinative. The father did assume full financial responsibility for the minor’s care while the child was in his custody. This included the purchase of clothing, food, medicine and toys. That the father may have been able to afford more is not a crucial factor.
We conclude that overwhelming evidence supports the trial court’s finding that the father treated his son as if he were a legitimate child.
III
Finally, the mother contends that although there may be sufficient evidence to support a legitimation by the father in other factual contexts, section 230 simply cannot be availed of under these circumstances to derogate from the exclusive custody of an illegitimate child vested in its mother under section 200. Her position is that “ ‘there is no sound basis for using the section [230] to alter the right of the mother of the child to its custody if she does not want to give it up voluntarily.’ ”
(Adoption of Pierce, supra,
In countering this argument and simultaneously attacking section 200, the father takes the position that current California law violates the equal protection clause of the Fourteenth Amendment to the United States Constitution and article I, section 7, of the California Constitution, insofar as it denies to fathers of illegitimate children those custody rights enjoyed by other parents. He relies for support upon
Stanley
v.
Illinois
(1972)
*801 Since we find the mother’s argument to be devoid of merit, we do not reach the constitutional issue. Section 230 specifically states that once a father has satisfied the statutory requirements, the “child is thereupon deemed for all purposes legitimate from the time of its birth.” (Italics added.) Thus, the father and mother of a legitimated child have rights and obligations with respect to their offspring identical to those of parents whose child is born legitimate. As California law governing parental custody rights imposes numerous distinctions on the basis of legitimacy, 15 a court resolving a custody dispute must determine whether or not the minor is legitimate before it can identify the applicable statutory provisions. Once a court finds that a father has fulfilled the requirements of section 230, it must apply statutes governing custody of legitimate offspring, giving both parents equal rights thereto, and resolve the dispute between mother and father according to the child’s best interests. In the matter presently before us, the court properly found, on the basis of substantial evidence, that Richard M. was a legitimate child. Therefore, section 200 was not relevant to the court’s determination as to which parent should be awarded custody.
To recapitulate, we conclude: (1) That there is substantial evidence to support the trial court’s determination that Jesse H. legitimated Richard M. pursuant to section 230; (2) that as a result Jesse H. acquired custody rights in respect to Richard M. equal to those of Dolores L.; (3) that since Dolores L. has established no countervailing grounds for relief, she is not entitled to a writ of habeas corpus returning Richard M. to her custody.
The order to show cause is discharged and the petition for a writ of habeas corpus is denied.
Wright, C. J., McComb, J., Tobriner; J., Mosk, J., Clark, J., and Burke, J., * concurred.
Notes
Section 230 provides: “The father of an illegitimate child, by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as.such; and such child is thereupon deemed for all purposes legitimate from the time of its birth. The foregoing provisions of this chapter do not apply to such an adoption.”
Hereafter, unless otherwise indicated, all section references are to the Civil Code.
Before the child was bom, Jesse H„ upon learning of Dolores L.’s pregnancy, apparently expressed some doubt that he was the father. However, after Dolores L. affirmed that the child was his, he willingly and openly acknowledged paternity.
A final order of the superior court granting a writ of habeas corpus in a child custody case is made appealable by Penal Code section 1507, enacted in 1959.
In making this argument, the mother relies upon section 200, which provides that “[t]he mother of an illegitimate unmarried minor is entitled to its custody, services, and earnings,” and upon the decisional law interpreting this section.
In the case of a legitimate minor, section 197 gives both parents equal custody rights. Furthermore, section 4600, subdivision (a), provides that custody is to be awarded “[t]o either parent according to the best interests of the child.” Thus, if the trial court’s determination that the father legitimated the child is correct, its award of custody to the father must be upheld.
Although the statute provides that a father who satisfies the specified requirements thereby “adopts” the child, the word “adopts" as used in section 230 has been construed to mean “legitimates,” so that “ ‘the acts of the father of an illegitimate child, if filling the measure required by that statute, would result, strictly speaking, in the legitimation of such child, rather than in its adoption.’ ”
(Estate of Lund
(1945)
Virtually the only cases in which the policy of the law favoring legitimation has not been held to require liberal construction of this statute have been those in which the child will achieve the status of legitimate regardless of the court’s decision on the section 230 question
(Adoption of Graham
(1962)
At least one court has held that the father’s place of habitation need not be “settled” in order to satisfy the statutory requirement. (See
Hurst
v.
Hurst
(1964)
It is unnecessary for us to here consider the extent to which courts have expanded the concept of “receiving.”
Blythe
v.
Ayres, supra,
See discussion of cases interpreting this requirement in the text accompanying footnote 8, ante.
All of these authorities rely heavily upon California cases in support of the rules they enunciate.
Section 224 provides that an illegitimate child may not be adopted without the consent of its mother. The father’s consent is not statutorily required.
Our attention has not been directed to any case in which a finding of legitimation was defeated on the grounds that a father who had acknowledged the child as his own and received it into his family did not otherwise treat it as legitimate.
In
Stanley
v.
Illinois, supra,
For an extensive discussion of these distinctions, see Rich, Plight of the Putative Father in California Child Custody Proceedings: A Problem of Equal Protection (1973) 6 U.C. Davis L.Rev. 1,3-11.
Retired Associate Justice of the Supreme Court sitting under assignment by the Chairman of the Judicial Council.