In Re Dehning Ex Rel. Dehning

VALLÉE, J.

Petitioners seek by this proceeding in habeas corpus to secure the custody of Eobyn Adair Dehning, aged 4, child of James and Diane Dehning, who is now in the custody of Diane. A writ was issued, a return was filed, and a

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hearing was held. James is now in military service. He was present at the hearing.

James and Diane were divorced in the state of Washington in 1953. The judgment awarded custody of Robyn to Diane with rights of visitation to James and the paternal grandmother, Mrs. William Dehning.

In July 1952, when Robyn was 10 months of age, Diane voluntarily left her with the paternal grandparents, Mr. and Mrs. William Dehning, at their home in Washington, where Robyn continued to remain. In December 1953 James petitioned the Washington court for modification of the judgment of divorce to give physical custody of Robyn to the paternal grandparents. A hearing was had, and in March 1954 the court filed a memorandum opinion in which it stated that the decree should be modified to provide that the child be left in the temporary custody of the paternal grandparents. Before an order had been signed, Diane filed a petition for rehearing. On March 11, 1955, the court made an order that Robyn be placed in the temporary care and custody of the paternal grandparents until further order. On March 18, 1955, a rehearing was held. On April 1, 1955, the court filed a memorandum opinion in which it stated that the welfare of Robyn would be best served by giving the paternal grandparents the actual and physical custody of Robyn at least until James returned from military service, and stated there would be no restriction of any reasonable visitation right on the part of Diane, but that Robyn should not be removed from the jurisdiction of the Washington court until further order. Prior to the entry of an order after the rehearing, Diane petitioned the court for reargument, which was set for July 22, 1955.

On July 17, 1955, prior to the reargument, Diane was in Washington and was allowed to have Robyn for the weekend. In disregard of the orders of the court, she left Washington and, without notice to James or the paternal grandparents, brought Robyn to California, and filed a petition in the Superior Court of the County of Los Angeles to be appointed her guardian. James then moved the Washington court for an order to show cause why Diane should not be held in contempt and why she should not forthwith return the custody of Robyn to the paternal grandparents. On August 19, 1955, a hearing was held on the order to show cause, at which both parties were represented by counsel. On August 26 the court made findings of fact and conclusions of law and entered