( Estate of Flood (1933) 217 Cal. 763, 767 [ 21 P.2d 579].) 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) 58 Cal.2d 899, 904 [ 27 Cal.Rptr. 163, 377 P.2d 275]), as for example, in cases in which the natural father seeks to prevent the adoption of the child by third parties. (See, e.g., Guardianship of Truschke (1965) 237 Cal.App.2d 75, 78 [ 46 Cal.Rptr. 601]; Adoption of Irby (1964) 226 Cal.App.2d 238, 240 [ 37 Cal.Rptr. 879].) In the instant case, it is undisputed that the child was born illegitimate, that Jesse H. is the father and that he has publicly acknowledged his paternity.
Finally, assuming that the constitutional requisites of notice and hearing regarding David's fitness under the standards of section 4600 are satisfied, if David has not legitimated the child, and if he is not entitled to custody under the section 4600 standard, the mother's relinquishment enables the agency to place the child for adoption without David's consent. (Civ. Code, §§ 224m, 226.1; Cheryl H. v. Superior Court, supra, 41 Cal.App.3d at p. 277; Guardianship of Truschke (1965) 237 Cal.App.2d 75, 79-80 [ 46 Cal.Rptr. 601].) (3) From the foregoing we see that the issue of legitimation is irrelevant to whether David is entitled to custody of his child.
There is a line of cases which tends to support the mother's contention regarding her consent to legitimation. (Adoption of [117 Cal.Rptr. 183] Irby (1964) 226 Cal.App.2d 238, 37 Cal.Rptr. 879; Guardianship of Truschke (1965) 237 Cal.App.2d 75, 46 Cal.Rptr. 601; Adoption of Pierce (1971) 15 Cal.App.3d 244, 93 Cal.Rptr. 171, and Cheryl Lynn v. Superior Court (1974) 41 Cal.App.3d 273, 115 Cal.Rptr. 849.) In Irby and Truschke the father of the child never was able to satisfy the requirement of taking the child into his home, due to the mother's refusal to permit this.
The decision was filed and section 4600 became law, before the advent of the Uniform Parentage Act, and at a time when a natural father had virtually no right in his children. Such a father lacked not only the benefit of the parental preference doctrine (Deering's Civ. Code (1971 ed.) §§ 200, 224; Guardianship of Truschke (1965) 237 Cal.App.2d 75, 80 [ 46 Cal.Rptr. 601]; Adoption of Irby (1964) 226 Cal.App.2d 238, 241 [ 37 Cal.Rptr. 879]; Adoption of Laws (1962) 201 Cal.App.2d 494, 500 [ 20 Cal.Rptr. 64]; Darwin v. Ganger (1959) 174 Cal.App.2d 63, 70 [ 344 P.2d 353]), but there was no statutory provision which entitled him to notice of a pending adoption proceeding, and he had no right to be heard in such a proceeding. If the Legislature had intended by the enactment of section 7017 to grant to natural fathers rights equal to those of a presumed father, a far more explicit reference would be required to justify such a radical departure from existing law.
The mother is entitled to custody, services, and earnings of the child to the exclusion of the father (Civ. Code, § 200; Guardianship of Smith, 42 Cal.2d 91, 93 [ 265 P.2d 888, 37 A.L.R.2d 867]), and she may place the child for adoption without the father's consent. (Civ. Code, §§ 224m and 226.1; Guardianship of Truschke, 237 Cal.App.2d 75, 79-80 [ 46 Cal.Rptr. 601].) The father may legitimate the child by marrying its mother (Civ. Code, § 215) or by publicly acknowledging it as his own, receiving it into his family, and treating it as though it were a legitimate child (Civ. Code, § 230), but the mother may effectively preclude legitimation where, as here, she refuses to marry the father or relinquish custody of the child to him.
" See also Guardianship of Truschke, 237 Cal.App.2d 75, 79, 80 [ 46 Cal.Rptr. 601]. (8) We find that the Irby reasoning and holding are controlling in the instant case.
[5] Whether William legitimated Harry in the manner required by section 230 presented a question of fact for the trial court. ( Guardianship of Truschke, 237 Cal.App.2d 75, 78 [ 46 Cal.Rptr. 601]; see Estate of Abate, 166 Cal.App.2d 282, 289 [ 333 P.2d 200].) [4b] The evidence supports the court's determination that "William publicly acknowledged Harry to be his son and received him as such within the meaning of section 230 of the Civil Code."
California Civil Code § 230 relied upon by the Wojciechowskis, provides: "The father of an illegitimate child, by publicly acknowledging it as his own, receiving it as such . . . 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 . . ." In Truschke v. LaRocca, 46 Cal.Rptr. 601 (1965), the California Supreme Court held that this section required a showing (1) that the father publicly acknowledged the child, (2) that he received it into his home, and (3) that he treated the child as his own legitimate child, and that the Code section should be strictly construed. The law cited above was repealed effective December 31, 1975. Under the current California law, the natural father's consent would be required. Cal. Civil Code § 7004.
This also appears to be the general rule. 2 Am.Jur.2d Adoption, Section 26. See also, In re Adoption of Irby, 226 Cal.App.2d 238, 37 Cal.Rptr. 879 (1964); Truschke v. La Rocca, 237 Cal.App.2d 75, 46 Cal.Rptr. 601 (1965); In re Adoption of Pierce, 15 Cal.App.3d 244, 93 Cal.Rptr. 171 (1971); In re Brennan, 270 Minn. 455, 134 N.W.2d 126 (1965). For the reasons aforesaid, we conclude that Jack Dittus, the petitioner herein, does not have a right under Section 30-10-07, N.D.C.C., (custody preference) to maintain this proceeding for the purpose of obtaining custody of the child in question.