Roche v. Roche

152 P.2d 999, 25 Cal. 2d 141, 1944 Cal. LEXIS 303

• Court: California Supreme Court
• Decided: November 1, 1944
• Docket: S. F. 16977
• Status: Published

Opinions

CARTER, J.

Respondent and appellant are husband and wife, and after living together for eleven years, they separated on March 6, 1943. They have one child, a girl, age eight. On April 9, 1943, plaintiff commenced an action against defendant for divorce on the ground of extreme cruelty, alleging in her complaint that she “is a fit and proper person to have the custody and control” of said child. That allegation was admitted by defendant, but he alleged that the child had been living with his mother for several years, and to remove the child from her present abode would not be beneficial to the child. The trial court found plaintiff’s allegations of extreme cruelty and of her fitness to be true, and that $1.00 per month was proper for her support. Nothing was awarded for the support of the child. The court found that:

“The best interests of the said minor child will be sub-served by the following:

“That the joint control of said minor child be awarded to both parents, but it is hereby ordered that the physical care and control thereof, until the further order of this Court be awarded to the paternal grandparents, residing on a ranch near Turlock, California; and it is further ordered that plaintiff be granted the privilege of visiting said child whenever she desires.”

Plaintiff contends that in view of the finding that she is a fit and proper person to have the custody and control of the child, the only conclusion possible is that she is entitled to have the “physical care and control” of the child, and that strangers may not be given such “physical care and control” even though the court found it was for the best interests of the child.

In the case of Stever v. Stever, 6 Cal.2d 166 [56 P.2d 1229], this court held that section 197 of the Civil Code should be construed with subdivision 1 of section 246 of said code, and they contemplate that the natural right of a parent to the care of a minor child, if a fit and proper person, shall prevail as against an entire stranger, the law presuming, in the absence of either evidence or findings showing the contrary, that either parent is a proper person to whom, the minor’s care should be awarded; and in a contest between the mother and father of a minor for custody, the court is not justified in awarding the custody to the parents of the father, although the latter consents, without a finding that the mother is an unfit person for the custody. In that case, no provision having been made for the custody of a minor child in either the interlocutory or final decree of divorce, a hearing was had on the mother’s application for custody. No findings were made as to the fitness of either parent. The court awarded custody to the child’s paternal grandparents with the father’s consent. The mother appealed. In reversing the order of the trial court this court relied upon Newby v. Newby, 55 Cal.App. 114 [202 P. 891], in which no finding was made as to the fitness of either parent, but the trial court found that the best interests of the child required that custody be awarded to a stranger and made an order in accordance therewith. Such order was reversed on appeal upon the theory that if either of the parents is a fit and proper person to have the custody of a child, a stranger may not usurp that right. That principle was enunciated in the Stever case at page 170, where this court said:

“But before the court can deprive the mother of her right to the minor’s custody and give her into the charge of strangers, there must be a finding that the mother is an unfit person to have the custody of her child.” The court also compared the rules of custody in a divorce proceeding with those in guardianship proceedings, stating in approving Guardianship of Mathews Estate, 169 Cal. 26, at page 168 [145 P. 503] :

“. . . a finding of the court that the mother was competent compels her appointment, notwithstanding her straitened financial condition, and the further fact that apparently the child’s material welfare would best be served by giving it to another.” To the same effect in principle as the Stever case are Newby v. Newby, supra; Eddlemon v. Eddlemon, 27 Cal. [80 P.2d 1009] ; In re White, 54 Cal.App.2d 637 [129 P.2d 706]; Guardianship of McCoy, 46 Cal.App.2d 494 [116 P.2d 103; Juri v. Juri, 61 Cal.App.2d 815 [143 P.2d 708]; Guardianship of De Ruff, 38 Cal.App.2d 529 101 P.2d 521], The high claim of preference to which parents are entitled with respect to the custody and control of their children has recently been declared by the Supreme Court of the United States in Prince v. Massachusetts, 321 U.S. 158 [64 S.Ct. 438, 442, 88 L.Ed. 645], where the court said:

“It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” The policy underlying this declaration is stated in In re White, supra, at page 640:

“The right of a parent to the care and custody of a child cannot be taken away merely because the court may believe that some third person can give the child better care and greater protection. One of the natural rights incident to parenthood, a right supported by law and sound public policy, is the right to the care and custody of a minor child, and this right can only be forfeited by a parent upon proof that the parent is unfit to have such care and custody.”

It is of no significance that the court awarded the bare legal “control” of the child to both parents. The essential thing in which a parent is interested is the physical control and care of the child, which here was awarded to the paternal grandparents. The policy above declared may not be thwarted by the artifice of giving a fit parent bare legal control while denying actual physical care and custody.

That portion of the judgment awarding the physical care and control of the child to the paternal grandparents is reversed, and the trial court is directed to ascertain whether the father is a fit and proper person to have the custody and control of the child, and to make an appropriate order in the light of the circumstances disclosed.

Shenk, J., Curtis, J., Edmonds, J., and Traynor, J., concurred.