In Re Bauman

PETERS, P. J.

Petitioner by this proceeding in habeas corpus seeks to secure the custody of his daughter, aged 8, the child now being in the custody of his divorced wife, who has remarried, and is now residing in Contra Costa County. It is quite clear, and no contention is made to the contrary, that habeas corpus is a proper means of determining rights of custody to minor children. (See cases collected 13 CaLJur. p. 251, § 29.)

From the petition, the return, and the documents filed by stipulation, the following facts appear: Albert and Pauline Bauman were finally divorced in Oklahoma in 1944. By that

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judgment it was provided that each parent should have alternate fixed periods of custody of the child. In May, 1947, the father petitioned the Oklahoma court to modify the divorce decree by granting him exclusive custody of the child on the ground that the mother was not a fit and proper person to have such custody. This petition came before the Oklahoma court for hearing on June 19, 1947. The order signed by the judge on that date recites that both the mother and father were then present in court, and were represented by counsel; that the court continued the hearing to a stated date in September; that the father called attention to the fact that the mother was then living in California and was about to leave the jurisdiction with the child, and demanded that she be put under bond to appear with the child in September. The court thereupon ordered that before the child could be taken from the jurisdiction the mother must post a $250 bond. The petition for a writ of habeas corpus recites, and this allegation is not denied, that the mother thereupon left Oklahoma with the child and came to California, without posting the required bond.

The next order of the Oklahoma court is dated September 11, 1947, to which date the modification proceeding had been continued. That order recites that the mother was in court on June 19, 1947, to contest the father’s petition for modification of the custody order; that the court on that date made its order requiring the mother to post a bond providing for the return of the child for this hearing; that the mother, in disregard of the orders of the court, left Oklahoma and brought the child to California without posting the required bond; that the mother is not a fit and proper person to have custody of the child. The order grants the father, petitioner herein, “full and complete custody of [the] minor child . . . and [he] is authorized to legally proceed to take custody of said child wherever he may find her. ’ ’