Connolly v. Connolly

California Court of Appeal Mar 25, 1963 No. Civ. 6933Published

Before: Griffin

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Holding. The court held that the trial judge did not abuse its discretion in modifying a child custody order to transfer custody from the mother to the father, as the welfare of the child is the paramount concern and the trial court is the sole judge of the credibility of evidence regarding the child's best interests.

Issues

Whether the trial court abused its discretion in modifying a child custody order without a showing of material change of circumstances.
Whether the trial court's decision to award custody to the father was supported by the evidence regarding the child's best interests.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Neither parent need be found unfit to justify a change of custody, the welfare of the child being the paramount concern.”

“While repeated applications for change of custody without subsequent change of conditions should not be encouraged and may be a ground for denying such change, it cannot be said, under the circumstances here related, that the trial court abused its discretion in making the order.”

GRIFFIN, P. J.

In this action for divorce, obtained by the plaintiff wife, the custody of the 5-year-old son was awarded to the mother on June 24, 1957, with specific visiting rights to the father and an order for child support was made. Two months later, the mother brought a motion for permission to use the child support money to place the child in a military academy. The motion was granted on September 10, 1957, with the consent of the father and it was so ordered. Certain hours of visiting rights were awarded to each party. Final judgment for divorce was given on August 15, 1958. On November 27, 1959, the father sought custody of the child, but after hearing before another judge this petition was denied.

On December 14, 1959, the father sought modification of the custody order again and alleged generally that he had remarried and that the child wanted to be with him because he was not happy at military school; that the father then lived in a three-bedroom home with Ms present wife and her two children (then aged 8 and 10) by a former marriage. Still another judge denied the motion and granted different visiting periods.

On June 3, I960, in reply to one of the many reciprocal

[435]

contempt charges in reference to violation of visitation privileges, the father again suggested change of custody to him. The proceeding was dismissed, On August 10, 1961, the father, reciting that the child was then 10 years old and had been a resident student of the military school for four years, and stating that the child was unhappy at said school and desired a natural home and family life with the father and his new family, with the 10-year-old and 12-year-old children, sought custody. He alleged that the plaintiff mother, although possessing an adequate home, prefers to avoid the responsibility of raising her son and is unwilling to allow said child to enjoy the love, companionship and benefits of defendant’s home; that if custody is given to defendant, the child will be able to attend a local school and have his own home and bedroom, since he has matured to the extent that he wants this form of education and home life.

The mother countercharged that she was willing to keep the son with her and if the court so decreed she would send him to another school; that the reason for defendant’s application for custody was of a selfish financial nature, to avoid child support payments.

Connolly v. Connolly

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GRIFFIN, P. J.

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