Guardianship of Rose

O’DONNELL, J. pro tem.

*

This is an appeal from an order appointing respondents, Jack Webb and Jean Webb, guardians of the person and estate of Kelly A. Rose, one of the minors above named.

1

Appellant Leslie A. Rose is the father of Kelly. The mother, Mary, is deceased. Leslie and Mary were married in

[679]

1944. Kelly was born in 1945. Leslie and Mary were divorced in 1948. The decree of divorce awarded custody of Kelly to Mary and directed Leslie to pay the sum of $30 per month for Kelly’s support. Thereafter Mary married George F. Webb, a brother of respondent Jack Webb. This marriage, too, ended in divorce.

Mary died in 1958. By her will Mary appointed respondents guardians of Kelly's person and estate. Respondents thereupon petitioned the lower court for their appointment as such guardians. Appellant filed objections to their appointment, together with a petition for his own appointment as Kelly’s guardian. After a hearing the court found that appellant had not visited Kelly or kept in contact with him since the divorce in 1948, although the divorce decree granted him the right of visitation, and further that appellant had knowingly and wilfully abandoned Kelly. The court further found that it is to Kelly’s best interests that respondents be appointed his guardians. The court thereupon made its order appointing respondents guardians of Kelly’s person and estate.

The fitness of appellant to have the custody of Kelly is not questioned. He was not found by the lower court to be an unfit parent. The presumption is therefore that he is a fit parent.

(Stewart

v.

Stewart,

41 Cal.2d 447 [260 P.2d 44] ;

In re Campbell,

130 Cal. 380 [62 P. 613].)

“It

is settled in this state that in either guardianship proceedings or custody proceedings in a divorce action, the parents of a legitimate child have preference over a nonparent and the custody shall not be given to a nonparent unless the parent is found unfit.”