Goto v. Goto

FOURT, Acting P. J.

The appellant has petitioned this court for a writ of supersedeas and for a temporary stay pending the granting or denial of the writ.

An interlocutory decree of divorce was granted the plaintiff and ultimately a final decree of divorce was entered (April 19, 1956.) Each of the parties to the action has since remarried and the primary question now is which of the parties shall have the custody of Hans Goto, one of the children of the parties hereto.

At the time of the interlocutory judgment the custody of the girl and Hans (the boy in question, who is now about 9 years of age), was awarded to the mother, the father to have certain visitation rights. The final decree carried over the provisions of the interlocutory decree, with reference to the custody of the children.

In September, 1956, the father instigated a proceeding to secure the custody of the children. The matter was referred to a commissioner and then continued to January 16, 1957. On January 17, 1957, the court ordered that the custody of the children remain with the plaintiff mother until the end of the school term in June and that there be a further hearing

[462]

with reference to the custody of the children prior to the following September.

On August 29, 1957, the defendant father was awarded the custody of both children with the plaintiff mother to have their physical custody during July and August of each year. The mother appealed from the order awarding the children to the defendant father. The order was affirmed in

Goto

v.

Goto,

52 Cal.2d 118 [338 P.2d 450] (May 8, 1959).

On May 26, 1959, the defendant father sought to modify the order of August 29, 1957, among other matters by cancelling the provisions thereof to the effect that the plaintiff mother have physical custody of the children during July and August of each year.

On June 23, 1959, the plaintiff mother sought to have modified the order theretofore made (on August 29, 1957) to the end that she be given the custody of the boy, Hans, with the defendant permitted to visit him, and further that she, the plaintiff, be permitted to visit the girl in defendant’s custody.