Opinion
4-17-1953
Guardianship of SMITH et al. HOWES v. COHEN. * L. A. 22209.
Hahn, Ross & Saunders and Saul Ross, Los Angeles, for appellant. Juaneita M. Veron, Huntington Park, for respondent.
Guardianship of SMITH et al.
HOWES
v.
COHEN. *
April 17, 1953.
Rehearing Granted May 14, 1953.
Hahn, Ross & Saunders and Saul Ross, Los Angeles, for appellant.
Clore Warne and Maxwell E. Greenberg, Los Angeles, as amici curae on behalf of appellant.
Juaneita M. Veron, Huntington Park, for respondent.
CARTER, Justice.
Frieda Howes petitioned to be appointed the guardian of the persons of Leland Smith, a minor of eight, and Sharon Smith, a minor of six, 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.
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; Pierce v. Jeffries, 103 W.Va. 410, 137 S.E. 651, 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 ex rel. Harper 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, 65 L.R.A. 689; Moritz v. Garnhart, 7 Watts (Pa.) 302, 32 Am.Dec. 762; People ex rel. Meredith v. Meredith, 272 App.Div. 79, 69 N.Y.S.2d 462, affirmed 297 N.Y. 692, 77 N.E.2d 8. It has been held repeatedly that, while the best interests of an illegitimate child is the important factor, the parents of such a child have a superior claim as against the would 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, 224 P. 784, 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 ex rel. Meredith v. Meredith, supra, 272 App.Div. 79, 69 N.Y.S.2d 462, affirmed 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.Eq. 404, 25 A.2d 630; French v. Catholic Community League, 69 Ohio App. 442, 44 N.E.2d 113; Com. 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; Pierce v. Jeffries, 103 W.Va. 410, 137 S.E. 651, 51 A.L.R. 1507. The same rule has been applied with respect to the custody of legitimate children. Civ.Code, § 197; Roche v. Roche, 25 Cal.2d 141, 152 P.2d 999; Stever v. Stever, 6 Cal.2d 166, 56 P.2d 1229; cases cited 13 Cal.Jur. 153-5. It is further held in those cases that as between a parent and a starnger the custody cannot be awarded to the latter unless the parent is found to be unfit and improper as custodian. This is in line with the principle that 'The essence of custody is the companionship of the child and the right to make decisions regarding his care and control, education, health, and religion', Lerner v. Superior Court, 38 Cal.2d 676, 681, 242 P.2d 321, 323, and '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. Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, supra. And it is in recognition of this that these decisions have respected the private realm of family life which which the state cannot enter', Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645, and 'For the welfare of his Ideal Commonwealth, Plato suggested a law which should provide: 'That the wives of our guardians are to be common, and their children are to be common, and no parent is to know his own child, nor any child his parent. * * * The proper officers will take the offspring of the good parents to the pen or fold, and there they will deposit them with certain nurses who dwell in a separate quarter; but the offspring of the inferior, or of the better when they chance to be deformed, will be put away in some mysterious, unknown place, as they should be.' In order to submerge the individual and develop ideal citizens, Sparta assembled the males at seven into barracks and intrusted their subsequent education and training to official guardians. Although such measures have been deliberately approved by men of great genius their ideas touching the relation between individual and state were wholly different from those upon which our institutions rest; and it hardly will be affirmed that any Legislature could impose such restrictions upon the people of a state without doing violence to both letter and spirit of the Constitution.' Meyer v. Nebraska, 262 U.S. 390, 401, 43 S.Ct. 625, 627, 67 L.Ed. 1042. Hence extreme caution must be observed in depriving a parent of the custody of his child. If he is fit, the child should not be taken from him by vague applications of the concept that the best interests of the child come first. Otherwise there is no limit to the extent courts may go. They may base parental deprivation of custody on what they consider better financial or social standing, educational background, nationality, race, or religion, etc., although the fitness of the parent is apparent. Merely because some other person may be more fit should not be a basis for defeating the parent's natural right. If without finding the parent unfit the general conclusion is reached that the best interests of the child require that a stranger be his custodian, the necessary hypothesis is that although the parent was fit, the court decided someone else was more fit. That means that the state acting through its courts may completely eliminate all parental rights. The next step would be for the state to assume complete and arbitrary power over children contrary to the principles enunciated in the Lerner, Prince and Meyer cases, supra. Our conclusion does not mean that the child is a chattel belonging to the parent nor that the state does not have a vital concern in the welfare of the child and the right to make regulations in that field. Rather it gives protection to the parent's right of custody which is founded upon the importance of the family relationship in this country.
It is suggested however that the cases cited supra Roche v. Roche, 25 Cal.2d 141, 152 P.2d 999; Stever v. Stever, 6 Cal.2d 166, 56 P.2d 1229, for the proposition that if the parent is a fit person he is entitled to the custody as against a stranger, are based upon In re Campbell, 130 Cal. 380, 62 P. 613, and cases following it which in turn was based upon code provisions relating to guardianship and custody of children which were changed in 1931 when the probate code was adopted. There has been, however, no substantial change in the statutory law. When the Campbell case was decided in 1900, § 246 of the Civil Code provided that in awarding the custody of or appointing a guardian for a minor the court is to be guided by what is for the best interests of the child, Civ.Code, § 246(1), and of two persons 'equally' entitled to the custody in 'other respects,' preference is to be given first to 'a parent' Civ.Code, § 246(3)(1). Section 1751 of the Code of Civil Procedure provided that the father or mother of a child under fourteen years if found by the court to be competent as a guardian is 'entitled' to be appointed guardian of the child 'in preference to any other person.' In the Campbell case it was said that the right of the parent existed at common law and under § 1751. '* * * it is made the duty of the court to appoint the father or mother of the minor, 'if found by the court competent to discharge the duties of guardianship.' But under this provision, and under the general law, the prima facie presumption is that the parent is competent; and hence the court is not authorized to appoint another as guardian, unless it finds to the contrary. Hence the section is to be construed as if it read that the father or mother is to be appointed 'if not found by the court incompetent,' etc. The fact of the competency or incompetency of the father was therefore the controlling question in this case, and, as there is no finding on the point, the findings must be regarded as insufficient to support the order appealed from.' In re Campbell, supra, 130 Cal. 380, 383, 62 P. 613, 614. When the probate code was adopted in 1931 the provisions for guardians were placed therein. Section 1406 of the Probate Code then provided and still does that in appointing a guardian of a child the court is to be guided by what is for the best interests of the child, substantially the same as former section 246(1) of the Civil Code, supra. Section 1407 of the Probate Code provided that: 'Of persons equally entitled in other respects to the guardianship of a minor, preference is to be given as follows: '(1) To a parent; '(2) To one who was indicated by the wishes of deceased parent; '(3) To one who already stands in the position of a trustee of a fund to be applied to the child's support; '(4) To a relative'.
And it is the same at present except for the addition of a subdivision not here pertinent. It is substantially the same as former section 246(3) of the Civil Code and section 1751 of the Code of Civil Procedure. The former section 1751 said that a parent is 'entitled' to custody if competent in preference to any other person but section 1407 of the Probate Code means substantially the same thing. When it says of the persons equally entitled in other respects, that is, fitness, preference shall be given first to a parent. That means that the parent has the first right. At least the change is not sufficient to indicate that the Legislature intended to change a long and almost universally established rule which is based upon sound policy. Moreover section 197 of the Civil Code still remains the same in providing that the father and mother of a legitimate child are equally entitled to his custody. Similar remarks are applicable to the amendment to section 138 of the Civil Code, Stats.1931, p. 1928. Prior to 1931 it had been provided that in divorce actions the court may award the custody of children as may seem proper. The amendment added, that in awarding the custody the court is guided by what appears for the best interest of the child and states the order of preference as between parents. Yet section 197 which specifically provides that the parents are equally entitled to custody was not changed. It does not appear therefore that the firmly established rule of preference for parents over strangers was intended to be changed.
Hence we believe it is clear that under the present statutes and authorities a parent if fit is entitled to the custody of his child, legitimate or illegitimate, and the court cannot award him to a stranger merely because it deems the latter more fit.
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.
The order is reversed.
SHENK and SPENCE, JJ., concur.
TRAYNOR, Justice (concurring).
I concur in the judgment.
Before the enactment of the Probate Code in 1931, it was settled that as between a parent and a stranger the former was entitled to the custody of his child unless found to be unfit. In re Campbell, 130 Cal. 380, 383, 62 P. 613; Estate of Akers, 184 Cal. 514, 522-523, 194 P. 706; In re Mathews, 174 Cal. 679, 683, 164 P. 8; Newby v. Newby, 55 Cal.App. 114, 116, 202 P. 891. The cases so holding relied among other things on the provision in the former Code of Civil Procedure section 1751 that 'The father or the mother of a minor child under the age of fourteen years, if found by the court competent to discharge the duties of guardianship, is entitled to be appointed a guardian of such minor child, in preference to any other person.' Although section 1751 was repealed when the Probate Code was enacted and the quoted provision was not included therein, the old rule has repeatedly been followed. Stever v. Stever, 6 Cal.2d 166, 170, 56 P.2d 1229; Poche v. Roche, 25 Cal.2d 141, 143-144, 152 P.2d 999; Eddlemon v. Eddlemon, 27 Cal.App.2d 343, 344, 80 P.2d 1009; Guardianship of De Ruff, 38 Cal.App.2d 529, 530, 101 P.2d 521; Guardianship of McCoy, 46 Cal.App.2d 494, 498, 116 P.2d 103; In re White, 54 Cal.App.2d 637, 640, 129 P.2d 706; Guardianship of Case, 57 Cal.App.2d 844, 848, 135 P.2d 681; Heinz v. Heinz, 68 Cal.App.2d 713, 714-715, 157 P.2d 660; Guardianship of Sloot, 92 Cal.App.2d 296, 297-298, 206 P.2d 862; Becker v. Becker, 94 Cal.App.2d 830, 833, 211 P.2d 598; Wilkinson v. Wilkinson, 105 Cal.App.2d 392, 400, 233 P.2d 639.
This rule has been criticized on the ground that it subordinates the interests of the child to those of the parent by requiring the court to award custody to a fit parent even though it may have found that the best interests of the child would be served by awarding custody to a stranger. Shea v. Shea, 100 Cal.App.2d 60, 66-67, 223 P.2d 32; Guardianship of Casad, 106 Cal.App.2d 134, 151, 234 P.2d 647; 33 Calif.L.Rev. 306; 19 So.Cal.L.Rev. 72. It may reasonably be contended that by omitting the quoted provision of section 1751 from the Probate Code, the Legislature intended to abrogate the theretofore established rule. Such a contention finds support in the provisions of SECTION 138(1) OF THE CIVIL CODE1 and section 1406 2 of the Probate Code that stress the relevance of the best interests of the child in awarding custody or appointing a guardian. On the other hand, SECTION 1407 OF THE PROBATE CODE3 recognizes the preferred position of the parent, and section 197 of the Civil Code provides that the parents 'of a legitimate unmarried minor child are equally entitled to its custody' and that if either is 'dead or unable or refuse to take the custody or has abandoned his or her family, the other is entitled to its custody, services and earnings.'
The objection to the rule that custody must be awarded to the parent unless he is unfit carries the harsh implication that the interests of the child are subordinated to those of the parent when the trial court has found that the best interests of the child would be served by giving his custody to another. The heart of the problem, however, is how the best interests of the child are to be served, Is the trial court more sensitive than the parent to what the child's best interests are, better qualified to determine how they are to be served? It would seem inherent in the very concept of a fit parent that such a parent would be at least as responsive as the trial court, and very probably more so, to the best interests of the child. The rule requiring that custody be awarded to such a parent in preference to a stranger does not operate to subordinate the interests of the child to those of the parent; it merely serves to define the area of the parent's responsibility for the welfare of the child. The court's statutory duty to be 'guided by what appears to be for the best interest of the child in respect to its temporal and mental and moral welfare'. Probate Code § 1406 encompasses the view that the child's welfare is pare of the responsibility of a fit parent.
One gains perspective by recalling that families are ordinarily allowed to function without outside interference though their wisdom in the upbringing of children may vary as widely as the physical heritage or economic advantages they give their children. Unless the upbringing of the child is so defective as to call for action by the juvenile court, it is unlikely that an outsider will challenge the parental custody or seek by legal process to prove that the child's welfare would best be served elsewhere. It is generally understood that the stability of established family units would be jeopardized by outside interference.
It is only when the family is dissolved by death, divorce or separation that conflicting claims to custody are likely to arise. If the parents are divorced and no third parties are involved, the court of necessity arbitrates whatever conflicting claims the parents may have to the custody of the children. If one parent dies, however, or upon divorce is unable or unfit to have custody of a child, outsiders may enter the picture and attack the competence of the other parent to have custody or contend that the child would be better off with them. The problem may also arise if the parent awarded custody at the time of divorce dies or for other reasons is no longer able to care for the child, or if one of both parents have through necessity been unable for a time to care for the child themselves, but thereafter seek to regain custody from outsiders whose assistance they had solicited in the interim.
Ordinarily in any of these circumstances the determination of what course will best serve the interests of the child will involve the consideration of numerous imponderables. All things being equal, it is clear that the parent should have custody. All things are ordinarily not equal, however. The outsider may be able to offer the child greater material advantages. In the case of the death of the parent having custody after divorce, the child may be on more intimate terms with relatives or a new spouse of the deceased parent than with the other parent who has not had custody. If the child has not been in the custody of either parent he may have been successfully integrated into the home of the person who has been caring for him. The parent seeking custody may have remarried so that if custody is awarded to him, the child will be faced with the problem of adjusting to a stepparent. On the other hand, the importance of preserving the relationship between a natural parent and his child cannot be gainsaid. Even in a case where the foster parent treats the child as his own, the child may still suffer from the lack of a natural parent in the eyes of his playments, or natural children or other relatives of his foster parent may discriminate against him. If he gets into trouble, members of his foster family may be tempted to point out that he is not really one of them. Moreover, even if the child is required to make some sacrifice to be with his natural parent or adjust to a new environment, it does not necessarily follow that his welfare will be correspondingly impaired. It may not be to the best interest of the child to have every advantage. He may derive benefits by subordinating his immediate interests to the development of a new family relationship with his own parent, by giving as well as receiving. Thus, although a change in custody from an outsider to a parent may involve the disruption of a satisfactory status quo, it may lead to a more desirable relationship in the long run.
The facts of the present case aptly illustrate the problem. The two children lived with their mother and half sister until their mother's death. At that time they were eight and six years of age. Their home was disrupted by their mother's death, and both their half sister and their father now seek their custody. The trial court has found that both are fit and proper persons. It may be assumed that the children wish to stay with their sister and that their lives will be less disrupted at this time if they are allowed to remain with the relative they know best. On the other hand, unless custody is given to their father they will remain to all intents and purposes orphans. If their friends inquire about their father they will either have to fabricate a story or admit their illegitimacy. If their sister marries, her husband might be unwilling to have them in his home. If the children are awarded to their father, they will become legitimate. Civil Code § 230. They will be placed in a normal home environment with one natural parent and will suffer social embarrassment only to the extent that their past may become known to their friends. In all likelihood the care and support they will receive from their father will be greater if they move into his home than if they remain essentially strangers to him. There are thus many considerations that support the conclusion that their best interests would be served by awarding custody to their father. There are also considerations that support the contrary conclusion of the trial court.
Psychology is not an exact science. If expert testimony were introduced in cases such as this in all probability it would be in conflict. The ordinary judge as well as the ordinary parent lacks the omniscience accurately to evaluate all of the various considerations that may enter into a custody problem. 'The essence of custody is the companionship of the child and the right to make decisions regarding his care and control, education, health, and religion.' Lerner v. Superior Court, 38 Cal.2d 676, 681, 242 P.2d 321, 323. If a parent is fit he will be vitally concerned with the best interests of his child. By leaving to him the responsibility as to how those interests will be best served the court simply recognizes that '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. Pierce v. Society of Sisters, supra. And it is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter.' Prince v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645.
Cases may arise in which the child's interests would be seriously prejudiced by awarding custody to his parent. In such cases, however, the parent's insistence on his right to custody despite the harm that would clearly result to his child will itself be evidence of his unfitness. In re Bensfield, 102 Cal.App. 445, 449, 283 P. 112; Guardianship of Casad, 106 Cal.App.2d 134, 152, 234 P.2d 647.
In the present case the appeal is upon the judgment roll alone, and for the purposes of this decision we must accept the finding of the trial court that the father is a fit and proper person to be appointed guardian of the children. It bears emphasis, however, that the father of an illegitimate child comes before the court in at best a questionable light. Although past indiscretions do not necessarily demonstrate present unfitness, Prouty v. Prouty, 16 Cal.2d 190, 193-194, 105 P.2d 295; In re Green, 192 Cal. 714, 721, 221 P. 903; see also, Clarke v. Clarke, 35 Cal.2d 259, 261-262, 217 P.2d 401, such a father should be required to explain why he has not legitimated his child. A father who has the power to do so but does not, demonstrates his unfitness by his willingness to inflict upon his child the status of illegitimacy. Such a father must not be allowed to bargain with the court by offering to exercise his power to legitimate in exchange for custody. On the other hand, a desire to secure custody may be the outgrowth of a moral rehabilitation reflected in an effort to undo a past wrong by legitimating the child.
A father may legitimate his child by marrying the mother, Civil Code § 215, or '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'. Civil Code § 230. On the record before us we must assume that the father did not legitimate his children because he was unable to do so. At the present time the father is married. To legitimate the children now he must have the consent of his wife to receive the children into his family. Civil Code § 230. There is no express finding that his wife is willing to receive the children into the family. On retrial the father must establish that the children will be legitimated as a minimum prerequisite to establishing his fitness for appointment as guardian.
SCHAUER, Justice, dissenting to opinion of CARTER, J.
I dissent.
Upon this appeal, which appellant has chosen to prosecute on the judgment roll alone, he makes no contention that it would be to his children's best interest and welfare to be under his custody and control. On the naked legal ground that he is the natural father and that the court has not found him 'unfit,' he seeks reversal of the order appointing as guardian of the children their sister (perhaps half-sister), respondent herein, Frieda Howes, who has supported and cared for them since the death of their mother.
Appellant does not even aver that he desires custody and control of the children. He did not initiate proceedings seeking to be appointed guardian of these children and he does not allege that he ever has had them in his custody, or heretofore sought their custody, or that he ever has supported them. He appears only in response to the petition of Frieda and has contented himself with filing a document entitled 'Ojections to Appointment of Guardian and Counter-Petition for Appointment of Guardian' wherein he merely 'objects to the appointment of said Frieda Howes as the Guardian of said children and desires that if it is deemed by the Court necessary that a Guardian be appointed, that he be appointed Guardian of said children.' (Italics added.) It is also noted that in Frieda's petition for appointment as guardian the word 'illegitimate' does not appear; the name of the mother does not appear; the fact of non-marriage is not alleged; the pertinent and sufficient averments in respect to the mother are the simple words 'Mother deceased.' How different are appellant's sensibilities! In his objections to Frieda's appointment he bluntly avers 'That said minor children are the illegitimate children of petitioner and their mother, Marguerite Smith, now deceased.'
How eloquently it thus appears on the face of the judgment roll that even though appellant has not been adjudicated 'unfit,' and has rather been decreed legally 'fit,' whatever that may mean, he continues now to be as indifferent to the welfare of the children as, from the fact that they were born out of wedlock and that he does not claim to have ever had their custody, 1 it may be presumed he has been from the beginning. Could it be that the real ground for appellant's objections to having the children's adult sister appointed their guardian is a fear that in the interests of these minors she might seek to compel this man to contribute suitably to their support?
And there is still further affirmative evidence in this record, mere judgment roll though it be, of appellant's lack of concern for these children. Appellant asserts in his brief (and respondent concurs in this statement) that the hearing on the guardianship matter 'was extremely brief and was based principally upon the report of the Probation Officer and upon an interview in Chambers between the trial judge and the two minor children.' The substance of the interview is not shown in the record and the preference expressed by the children does not specifically appear, but appellant urges that such preference 'is immaterial.' (Italics added.) Can we doubt what that preference is?
Appellant argues further that 'it is still the law of this State that a parent has a superior right to the custody of his minor children, provided only he is fit and proper to have such custody and regardless of whether or not it would be better for such children to be with a stranger.' (Italics added.) Therefore, concludes appellant, the trial court 'in awarding the guardianship of the children * * * to a stranger (their sister or half-sister who was caring for and supporting them) against the wishes of the father who was a fit and proper person to have their custody, abused its discretion.' It seems to me that on this record it is this court which abuses its discretion in reversing the order of the trial court and condemning these children to a custody inimical to their 'best interest and welfare.'
Let us look further at this record. Nowhere therein nor in his briefs does appellant come forth with a clear and unequivocal declaration that he is willing to support his children, that he desires their personal custody, that he loves them and that he wants to best serve their welfare, and on that account wants to be their guardian; likewise, he does not even state that he wishes to receive them into his family and otherwise treat them as if they were legitimate, either in order that they may thereby become legitimated as provided by the Civil Code (§ 230), or in order to see to it that their best interest and welfare are subserved in other respects as well. Rather, the whole tenor of appellant's pleadings, briefs, and arguments indicates that he is stepping carefully around an assertion that he now wishes to assume full responsibility for the children, instead suggests that his chief interest is that no one else be placed in a position to assert rights of the children as against him, and that any authority he may have over the children not be lost, as would result from the appointment of another as their guardian (Civil Code, § 204, subd. 1.). The entire record tends to confirm the conclusion of the trial court that the best interest and welfare of the children lie with their sister, respondent herein, rather than with appellant.
This case appears to me to again illustrate the poignant undesirability, which I pointed out in my dissent in Roche v. Roche (1944), 25 Cal.2d 141, 144-149, 152 P.2d 999, of requiring the trial court to find a parent to be 'unfit' before it can confide the custody of a child to another person, even when the child's best interests are found to be with the other. Who can say what 'fit' of 'unfit' may mean to different judges? If the term be cheapened to mean less fit by comparison and there are those who argue that such interpretation should be given to it then the finding that the best interests of the children require that they be placed with one person rather than with another is in effect a finding that, by comparison, the one is unfit. But why should these children, already bearing the burden of having illegitimate parents (which, as noted hereinabove, their father in this record has unnecessarily alleged and has evidenced no concern about removing) be further burdened with a finding that their natural father is 'unfit' to be their guardian? The statute does not require it. The children are both less than ten years of age and it may well be that at some future time changed circumstances and changed attitudes of the father, and perhaps the wishes of the children themselves, will indicate that it would thereafter serve their best interest and welfare to be with the father.
As declared in the dissent in the Roche case, it is my view that we should have confidence in trial judges and in the processes of the law which enable them to view and hear at first hand the children, the parents and other claimants, and that their discretion in the premises should not be so rigidly limited as is done by the rule followed by the majority here. To require a trial court to find a parent 'unfit' in order that it may accord the children their right to have their best interest and welfare promoted appears to me to be harsh, legalistic, unfair to both the children and the parent, and in contravention of the legislative intent.
Regardless of differences of opinion as to the desirability of the rule as applied in the Roche case it is quite unnecessary to apply it here. For this holding today there is neither statute nor precedent which requires it. The holdings of In re Campbell (1900), 130 Cal. 380, 62 P. 613, and In re Mathews (1917), 174 Cal. 679, 164 P. 8 (see also Estate of Wise (1918), 179 Cal. 423, 426, 177 P. 277; In re Green (1923), 192 Cal. 714, 721, 221 P. 903) that a parent of a minor child under fourteen years of age, if found by the court to be 'competent to discharge the duties of guardianship' was entitled to be appointed guardian in preference to a non-parent, regardless of the best interest of the child, are both based upon the specific language of the first sentence of former section 1751 of the Code of Civil Procedure. That sentence was, however, repealed in 1931, and not reenacted, although the other provisions of the section were reenacted as sections 1406 and 1410 of the Probate Code. It thus appears that the Legislature, in recognition of what seems to me to be the protest expressed by this court in In re Mathews, supra, and Estate of Wise, supra, against statutes construed to require that the property right of a parent in a child be considered superior to the best interest and welfare of the child, wisely decided to, and did, remove such requirement from the law of this state.
In the Mathews case, decided in 1917, the court pointed out (page 683 of 174 Cal. 164 P. 8), that 'It is argued with great force that the trend of modern decisions is to regard as of primary importance the welfare of the minor himself. This is most true. The decisions to this effect are made either under the permission of the law, which contains no such restriction as that found (in 1917) in our section 1751, or else are given under the command of the law which, in effect, declares that over and above all else the controlling consideration shall be the welfare of the child. If we were thus at liberty to act, it might well be that the custody of this child, under the findings of the court, would be given to (the non-parent with whom the child had been living for some ten years) * * *.'
It is therefore my view that the courts of this state are no longer required by statute to arbitrarily disregard the welfare of the child whenever a legally 'fit' parent is making claim, and need no longer adhere to the view expressed in In re Campbell (1900), supra, 130 Cal. 380, 382, 62 P. 613, that the right of the parent in the child is similar to that of the owner of property in his chattel and must 'be regarded as coming within the reason, if not within the strict letter, of the constitutional provisions for the protection of property * * *.' To place this property right conception of a parent's claim to children over and above the welfare of the children seems to me to be a throwback of generations if not of centuries. The mandate of our Legislature as expressed in section 1406 of the Probate Code is that 'In appointing a general guardian of a minor, the court is to be guided by what appears to be for the best interest of the child in respect to its temporal and mental and moral welfare; and if the child is of sufficient age to form an intelligent preference, the court may consider that preference in determining the question * * *.' These provisions, when construed with the provision of section 1407 of the same code, that 'Of persons equally entitled in other respects to the guardianship of a minor, preference is to be given as follows: (1) To a parent; * * *' (italics added), appear to me to require that the first concern of the court should be directed toward determining 'what appears to be for the best interest of the child in respect to its temporal and mental and moral welfare' (italics added) as specified by section 1406, and that only when the sum of all of these aspects of the child's welfare will be subserved equally well by having the parent as guardian will the parent's right be held as a matter of law superior.
I am further of the view that such a philosophy, rather than tending toward the weakening of family relationships and the assumption of arbitrary state control over children, will work towards the contrary result. Where, as here, although the parent is found legally 'fit,' it does not appear that as between parent and child there ever has been a family relationship, and where the parent's concern for his children's welfare and his wish to serve their best interests are unestablished and appear to be highly questionable, how can it be considered that any family relationship that might be established with him would be more desirable than that heretofore and presently enjoyed by the children with their sister, respendent herein who, it seems, has cared for them as a labor of love? Is it not more likely that they will grow to mature, repsonsible, adulthood, to take a useful place in society, when living in the home in which the trial court found their best interest resides, rather than being compelled to leave that home for such abode, if any, as the father may be inclined to designate? Although I believe there is no question but that in the vast majority of cases the best interest of the child will lie with the natural parent and that trial judges surely can be depended on to so find, it nevertheless seems to me that this case points up and again emphasizes the necessity, the justice, and the rightness, of permitting trial judges the exercise of a wise discretion in deciding problems of cutody and guardianship of children. There are many things in this record which, in the interests of the children, seem to cry aloud for support of the trial court's order, yet none of those things suggests that the trial judge should have found the father to be 'unfit' to have custody of children. Indeed it would have been a cruel and unnecessary act (almost as cruel and unnecessary as the act of this court today) for the trial court to have found the father 'unfit' to have custody of children, for there is another finding in the record. It is that this 'Natural father is remarried and has a family of the second marriage.' To this second family appellant well may be not only a legitimate husband and father but in truth a 'natural' and a kindly, considerate one. Yet however fit he is in a legalistic sense, he may be the last one who, for the interests of the children, should be appointed their guardian.
The findings establish that the children have no estate. Such findings also establish, directly or impliedly, that the appellant is the one person who is primarily liable for the support of the children and against whom the guardian should assert rights on behalf of the children. But this court holds that as a matter of law, since appellant is not legally 'unfit,' the welfare of the children cannot even be considered, let alone given effect.
It should be mentioned that there are some assumptions in the majority opinion, and many in the concurring opinion of Justice TRAYNOR, which appear to be inconsistent with the trial court's findings, and to be indulged to the end of supporting a reversal rather than an affirmance. The concurring opinion also speaks of a new trial. There is no occasion for a new trial. On the majority holding appellant is, as a matter of law, entitled to guardianship papers.
Also demanding mention is the concurring opinion's statement that 'On retrial the father must establish that the children will be legitimated as a minimum prerequisite to establishing his fitness for appointment as guardian.' This statement, if there were to be a new trial and it was accepted by the trial court, might well work a manifest injustice to the appellant father, and to his wife, and occasion unnecessary suffering both to these children and to the presently legitimate children of appellant and his wife. It may be, or it may not be, to the best interests of the children involved here that they be taken into the home and family of appellant. There might develop a quite natural resentment on the part of the legitimate children of the established family to what they could consider to be an intrusion. Their remarks to neighborhood children could lead to cruelties and griefs which only the sensitive can fully understand and which only the callous would willfully inflict. There can be far more sinister influences on the life of a child than the legal status of illegitimacy. If the appellant here has all the virtues which the concurring opinion assumes for him, then his good faith determination that the welfare of these children will best be served by not taking them into his household should be respected. In any event it is to me unthinkable that a trial court should find the appellant father here, if he is a good husband and father to his present family, to be 'unfit' to have the custody of the children whose welfare is here at stake. However, in the interests of materiality, it should again be pointed out that the record in this case contains no suggestion that the appellant wants the personal custody of the children; his only expressed and pleaded concern is that the sister be not appointed guardian and only 'if it is deemed by the Court necessary that a Guardian be appointed, that he be appointed Guardian of said children.'
Although I have not discussed the question of illegitimacy as bearing upon any right of the father (except as it may be relevant before the trial court in determining what is for their best interest), it may be noted that while under the provisions of section 1403 of the Probate Code the consent of both parents, if living and capable of consent, is required for the appointment by will or deed of a guardian of a child, nevertheless the mother alone may make such appointment if the child is illegitimate. Also, section 1405 of the same code provides that the court may appoint a guardian 'when no guardian has been appointed * * * by will or by deed * * *.' These sections would appear to me to cast further doubt upon the absolute legal right here sought to be asserted by appellant-father. (See In re Britt (1917), 176 Cal. 177, 167 P. 863; In re Imperatrice (1920), 182 Cal. 355, 358, 188 P. 48.)
I would affirm the order appealed from.
GIBSON, C. J., concurs.
EDMONDS, Justice (dissenting).
The trial court found that for 'the best interest and welfare' of the minor children whose custody is in controversy, Frieda Howes should be appointed guardian of their persons. The record fully supports and justifies that determination and I would affirm the order based upon it. --------------- * Subsequent opinion 265 P.2d 888. 1 'In awarding the custody the court is to be guided by the following considerations: '(1) By what appears to be for the best interest of the child in respect to its temporal and its mental and moral welfare * * *.' 2 'In appointing a general guardian of a minor, the court is to be guided by what appears to be for the best interest of the child in respect to its temporal and mental and moral welfare * * *.' 3 'Of persons equally entitled in other respects to the guardianship of a minor, preference is to be given as follows: '(1) To a parent * * *.' 1 So far as the record on appeals shows appellant does not claim to have supported the children or even to have made any contribution toward their support. However, on the oral argument before us, one of the justices, going outside the record, asked counsel for appellant 'Did he ever support the children?', and counsel replied 'Yes.' The inquiring justice also asked counsel for the respondent the question 'The father did support these children?' and counsel responded 'The father contributed somewhat to their support, yes.' There was no stipulation that the record should be augmented by adding all or any part of the quoted questions and unsworn answers, or that any of such 'evidence' was before the trial court.