Strong v. Owens

WILSON, J.

From a judgment granting plaintiff the exclusive custody and control of her minor child, defendants appeal.

Plaintiff is the natural mother of the infant in question

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who was born July 13, 1945, and for whose custody she has petitioned. The child is the issue of a clandestine love affair between plaintiff and defendant Stacey Elliott Owens. At the time of his birth and at the time of trial plaintiff was married to Henry Strong, Jr., and defendant Owens, the acknowledged father of the child, was married to defendant Pay Owens.- Plaintiff’s husband is a sergeant in the United States Army, stationed outside California. When the child was born, neither the spouse of plaintiff nor of Owens had knowledge of it. Defendant Pay Owens first learned about the situation when plaintiff called her on the telephone about seven months later.

At the time plaintiff and the child were discharged from the hospital, plaintiff went to the home of a friend and the infant was immediately placed, with the aid of the Children’s Bureau of the city of Los Angeles, in the home of a Mrs. Johnson in Monrovia. During the first year of his life the child was transferred to two other homes and in August, 1946, with the consent of plaintiff, he was taken by defendants into their home. About seven months later plaintiff asked Owens for custody of the child, which he refused and she thereupon brought this action- on May ’ 12, 1947. On August 5, 1947, plaintiff filed a petition for a writ of habeas corpus, praying that the child be delivered to her. The matter was heard on August 8, 1947, and the writ was denied.

Defendants contend that (1) the denial of the petition for a writ of habeas corpus was an adjudication upon the question of the right to custody and is res judicata as to this proceeding; (2) it was error for the trial court to permit the introduction into evidence of a “certificate” in the form of a letter from plaintiff’s husband for the purpose of proving her allegation that her husband desired to receive the child into his home and to assume responsibility for his support, and (3) it was an abuse of discretion for the court to award exclusive care and custody of the child to plaintiff without restricting her right to remove him from the jurisdiction of the court and without providing safeguards whereby she would be required to cooperate in making reasonable arrangements for Owens to visit the child and to keep him advised as to the child’s whereabouts.