Guardianship of Jones

DOOLING, J.

This is an appeal by the paternal grandfather of Gary Allen Jones, a minor, from an order appointing respondent, the mother of said minor, the guardian of his person and estate and denying appellant’s petition for letters of guardianship. The minor was born in 1943. In 1946, Kenneth George Jones, the father of the minor, secured an interlocutory decree of divorce from the respondent by which

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the custody of the minor was awarded to the father. On March 5, 1947, a final decree of divorce was entered in this action and a few days later the respondent married Paul Hiskey. On February 13, 1947, the father of the minor disappeared under circumstances suggesting suicide. On May 8, 1947, the respondent mother secured temporary custody of the minor by an ex parte order made pursuant to Probate Code, section 1442, the minor having been in the physical custody of his paternal grandparents from the time of his father’s disappearance.

On the hearing of the petitions for guardianship which commenced on April 22, 1947, the appellant produced evidence of the respondent’s adulterous relations with one Thackeray extending over a period of approximately one year from May or June, 1945 to June, 1946. The respondent first denied under oath any such relations with Thackeray but at a subsequent stage of the hearing she resumed the witness stand and voluntarily admitted the falsity of her previous testimony in this respect. Her explanation of her original denial of misconduct with Thackeray was that while her husband knew the facts other relatives and friends present in the courtroom did not and she was reluctant to have them disclosed in their presence.

Appellant sought to prove similar acts of misconduct with other men in the years 1943, 1944 and 1945. The trial judge, relying on the settled rule that the fact at issue was the present fitness of the respondent to have the custody of her child

(Prouty

v.

Prouty,

16 Cal.2d 190 [105 P.2d 295] ;

In re Green,

192 Cal. 714 [221 P. 903] ;