Guardianship of McCoy

DORAN, J.

This is an appeal from a judgment and order appointing the father of the minor in question the guardian of the minor’s person and estate. Appellant is the second husband of the minor’s mother and the stepfather of the minor. The question here involves the right, as between the natural father and the stepfather of the child, to appointment as the child’s guardian, under the circumstances presented.

At the time of the father’s, respondent’s, petition for custody herein the minor, a boy, was seven years of age and his mother was dead. About the time the boy was two years old his mother obtained a decree of divorce from respondent and was awarded custody of the child. The boy’s mother subsequently married appellant, and it appears that respondent also subsequently married and at the time of his petition herein was living with his second wife and a child of the second marriage, a six year old boy. It appears that ever since his mother’s marriage to appellant the minor here in question has lived with appellant.

The court found appellant to be a fit and proper person to have the care and custody of the minor but concluded that

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respondent, the father, was entitled to be appointed guardian as a person preferred under section 1407 of the Probate Code unless otherwise found to be incompetent and unfit. The court did not find respondent to be incompetent and unfit ; and found that respondent had not deserted or abandoned or failed to support the said minor child and that respondent was a competent, fit and proper person to have the care and custody of the said minor.

Appellant contends that the findings that respondent had not deserted or abandoned or failed to support the minor child, and that respondent was a fit and proper person to have custody of the said child, are not supported by the evidence ; and that there is no evidence that the special interest of the child will be best served in respect to his temporal and mental and moral welfare in the appointment of respondent as his guardian; and that the uneontradieted evidence conclusively shows that respondent forfeited his right to be appointed guardian in the matter. These contentions are based upon the ground that the minor’s mother obtained her divorce from respondent for desertion and that thereafter respondent was convicted of failure to provide for the minor and his mother, and that the evidence presented to the court below revealed these facts. Appellant also argues that where the issue of the best interest of the child is raised by the pleadings, an order appointing a guardian must be based upon findings of facts specifically regarding that interest.