Guardianship of Smith , 42 Cal. 2d 91 ( 1954 )

CARTER, J.

Frieda Howes petitioned to be appointed the guardian of the persons of Leland Smith, a minor of 8, and Sharon Smith, a minor of 6, brother and sister. She alleged that she is the sister of the minors; their mother is dead; their father is Harry Cohen and all reside in Los Angeles, California; that the minors are now under her care and she has supplied and cared for them since the death of their mother; their “natural” father, Cohen, has “remarried” and has a family of the second marriage; that the only relatives of the minors are their father, petitioner, and a brother, Paul Smith, who lives with petitioner; that they have no estate. Cohen filed objections to the appointment and requested that he be appointed guardian stating that he is the “natural” father of the minors, they being the illegitimate children of Cohen and Marguerite Smith, deceased, their mother.

The court found all of the allegations of both Frieda and Cohen are true; that both Frieda and Cohen are “fit and proper” persons to be the guardians of the minors and have their custody and control; and that it is “to the best interest and welfare” of the minors that Frieda be appointed guardian. It was so ordered and Cohen appeals. He asserts that being the father %of the children, although they are illegitimate, he has preference in the selection of their guardian, he being a fit and proper person.

It is settled in this state that in either guardianship proceedings or custody proceedings in a divorce action, the parents of a legitimate child have preference over a non-parent and the custody shall not be given to a nonparent unless the parent is found unfit. “Where a parent applying for custody is in a position to take the child and is not shown to be unfit, the court may not award custody to strangers merely because it feels that they may be more fit or that they may be more able to provide financial, educational, social, or other benefits. . . . [Citing eases.] ‘ [T]he discretionary power of a trial court necessarily is limited by those provisions of the code wherein the express policy of the Legislature regarding general questions of custody are set forth (Civ. Code, §§ 138, 197; Prob. Code, §§ 1407-1408) and by the judicial interpretation of those code provisions in relation to the specific questions presented by the instant case.’ (Robertson v. Robertson, 72 Cal.App.2d 129, 132 [164 P.2d 52].) Section 1407 of the Probate Code provides that as between persons equally entitled in other respects to the guardianship of a minor preference is to be given first to a parent. This section has been construed to be substantially the same as former section 246(3) of the Civil Code and section 1751 of the Code of Civil Procedure which provided, in substance, that a parent if competent is entitled to custody in preference to any other person. Section 138 of the Civil Code provides that as between parents adversely claiming the custody, neither parent is entitled to it as of right, but other things being equal, if the child is of tender years it should be given to the mother ; if it is of an age to require education and preparation for labor and business, then to the father. The code sections contemplate that the care of a minor child be awarded to a parent, if a fit and proper person, as against a stranger.” (Stewart v. Stewart, 41 Cal.2d 447, 451 [260 P.2d 44].)

Here the parent, Cohen, the father, was found fit rather than unfit and the mother is dead. The only difference in this case is that the minors were not the legitimate issue of Cohen, but that is not significant.

When the mother and father of an illegitimate child are both alive and he has not been legitimated, the mother is entitled to his custody, services and earnings to the exclusion of the father. (Civ. Code, § 200; In re Gille, 65 Cal.App. 617 [224 P. 784] ; Strong v. Owens, 91 Cal.App.2d 336 [205 P.2d 48] ; 51 A.L.R. 1507.) Both the mother and the father are responsible for his support. (Civ. Code, §§ 196a, 196; Schumm v. Berg, 37 Cal.2d 174 [231 P.2d 39, 21 A.L.R.2d 1051]; Reed v. Hayward, 23 Cal.2d 336 [144 P.2d 561].) On the death of the mother the natural father is entitled to the custody of an illegitimate child if he is a fit person. (See Commonwealth v. Fuller, 142 Pa.Super. 98 [15 A.2d 518]; Hayes v. Strauss, 151 Va. 136 [144 S.E. 432]; Aycock v. Hampton, 84 Miss. 204 [36 So. 245, 105 Am.St.Rep. 424, 65 L.R.A. 689] ; Moritz v. Garnhart, 7 Watts (Pa.) 302 [32 Am.Dec. 762]; People v. Meredith, 272 App.Div. 79 [69 N.Y.S. 2d 462], affmd. 297 N.Y. 692 [77 N.E.2d 8].) It has been held repeatedly that, while the best interests of an illegitimate child are the important factor, the parents of such a child have a superior claim as against the world to his custody if they are fit and proper. (Armstrong v. Price, (Mo.App.) 292 S.W. 447, mother; Jensen v. Earley, 63 Utah 604 [228 P. 217], mother; In re Gille, supra, 65 Cal.App. 617, mother; Ex parte Wallace, 26 N.M. 181 [190 P. 1020], father; Garrett v. Mahaley, 199 Ala. 606 [75 So. 10], father; Lewis v. Crowell, 210 Ala. 199 [97 So. 691], father; People v. Meredith, supra, 69 ,N.Y.S.2d 462, affmd. 297 N.Y. 692 [77 N.E.2d 8]; State v. Nestaval, 72 Minn. 415 [75 N.W. 725]; Jackson v. Luckie, 205 Ga. 100 [52 S.E.2d 588] ; Ex parte Schwartzkopf, 149 Neb. 460 [31 N.W.2d 294] ; Ex parte Malley, 131 N.J. 404 [25A.2d 630] ; French v. Catholic Community League, 69 Ohio App. 442 [44 N.E.2d 113] ; Commonwealth ex rel. Human v. Hyman, 164 Pa.Super. 64 [63 A.2d 447]; Templeton v. Walker, (Tex.Civ.App.) 179 S.W.2d 811; Henderson v. Henderson, 187 Va. 121 [46 S.E.2d 10] ; Petition of Dickholtz, 341 Ill.App. 400 [94 N.E.2d 89]; 7 Am.Jur., Bastards, §§ 61-66; 10 C.J.S., Bastards, §17; 51 A.L.R. 1507.)

There is an additional factor in the instant case. As far as appears the minors have not been legitimated. By awarding their custody to the father they are more likely to be legitimated because “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.” (Civ. Code, § 230.) Unless the father has the right to custody it is not probable that he will receive the minors into his home and thus legitimate them.

This being, a judgment roll appeal and the ground of reversal being that the order appealed from is not supported by the findings, the question is presented as to whether there should be a general reversal or a reversal with direction to the trial court to enter an order appointing appellant guardian of the persons of the minors here involved. Section 53 of the Code of Civil Procedure provides in part: “The Supreme Court, and the District Courts of Appeal, may affirm, reverse, or modify any judgment or order appealed from, and may direct the proper judgment or order, or direct a new trial or further proceedings to be had.” A proper construction of the foregoing provision would seem to be that in a case such as this, this court may, in its discretion, order a general reversal which means that the case is set at large and the issues of fact must be retried, or may direct the trial court to enter an order appointing appellant guardian of the minors in the place of respondent in accordance with the views herein expressed. In view of our conclusion that the trial court may desire to give further consideration to the factual matters presented, we deem it appropriate to order a general reversal of the order, thus setting at large all of the issues of fact for a redetermination by the trial court.

The order is reversed.

Shenk, J., and Spence, J., concurred.