In Re Landry

California Court of Appeal Oct 30, 1943 No. Crim. 1834Published

Before: Peek

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Holding. The court overruled the petitioner's demurrer to the respondents' amended return, finding that the respondents sufficiently alleged facts regarding the mother's fitness to warrant a hearing. The court further held that a prior abandonment proceeding did not preclude the current inquiry into the mother's fitness for custody.

Issues

Whether the respondents' amended return sufficiently alleged facts to constitute a defense to the habeas corpus petition.
Whether a prior abandonment proceeding under the Welfare and Institutions Code precludes the court from considering the mother's fitness for custody.
Whether habeas corpus is an appropriate remedy to determine custody when the child's safety or welfare is at issue.

Disposition. Demurrer overruled; referee appointed.

Quotations verified verbatim against the opinion

“Admitting the material facts alleged in the amended return to be true, as petitioner must by her demurrer, it necessarily follows from the authorities cited that a sufficient case has been stated.”

“The question before the trial court in the abandonment proceeding was entirely different from that here presented.”

“It is apparent from the foregoing that sufficient cause appears for the appointment of a referee to hear and take testimony on issues of fact raised by the petition, the return, the amended return, and the traverse thereto.”

[232]

PEEK, J.

Petitioner Anne Landry Me We thy by her application for a writ of habeas corpus, seeks to have the custody of her twelve-year-old minor son, Allan Dale Landry, restored to her. She alleges that at the time of the divorce and separation of herself and the minor’s father on December 3, 1939, said child was. left with his paternal aunt and uncle (respondents herein) and has so remained in their custody; that said divorce decree, obtained in the State of Nevada, awarded her the custody of said child; that respondents now refuse to return the child to her; that a proceeding was instituted by respondents in the county of San Joaquin under section 701 of the Welfare and Institutions Code, seeking to have the minor and his younger sister declared to be abandoned children; that said petition was denied; that upon the denial thereof petitioner filed a petition for a writ of habeas corpus in the Superior Court in and for the County of San Joaquin, seeking the custody of said minor, but that said petition was dismissed on the basis that the child had expressed a desire not to be returned to his mother; that the denial of said writ was improper and contrary to the rights of the mother, and also a denial of full faith and credit in the Nevada divorce decree.

The return and amended return to the petition allege that this is not a proper court and that habeas corpus is not a proper remedy; that the proper proceeding would be by petition for letters of guardianship in the Superior Court in and for the County of San Joaquin. Respondents then proceed to set forth with particularity, facts alleged to be such as would constitute petitioner an unfit and improper person to have the custody of said minor.

To the amended return petitioner has filed both a general demurrer and an answer.

By said demurrer petitioner raises two issues, the first, as regards the sufficiency of the facts alleged to constitute a proper defense to the petition, and second, as regards the jurisdiction of this court to entertain the questions raised by virtue of the prior abandonment proceedings, which proceedings petitioner contends were decisive of the identical question placed in issue here by the amended return, and likewise that this court is without jurisdiction to hear the questions raised by respondents, for to do so would be to deny full faith and credit to the Nevada decree.

In Re Landry

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PEEK, J.

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