Richter v. Superior Court

California Court of Appeal Apr 8, 1963 No. Civ. 27148Published

Before: Kingsley

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Holding. The court held that a trial court cannot adopt a blanket policy of granting continuances in paternity matters until after a child's birth, but must instead exercise informed discretion based on evidence regarding the specific needs of the child and the parties.

Issues

Whether a trial court may adopt a policy of automatically continuing paternity support hearings until after the birth of the child.
Whether a trial court must exercise informed discretion based on evidence before granting or refusing a continuance in a paternity support proceeding.

Disposition. Peremptory writ of mandate issued.

Quotations verified verbatim against the opinion

“No fixed “policy,” either to grant requests or to refuse them, should exist. It is the duty of the trial court to take evidence sufficient to enable it to exercise an informed discretion before a continuance is granted or refused.”

“Since the trial court here did not purport to exercise its discretion in this matter, the peremptory writ must issue.”

KINGSLEY, J.

The salient facts are as follows: On January 4, 1963, petitioner filed suit against Ernest Winter to establish paternity and for support of the child in question. On January 6, 1963, Ernest Winter was served with a copy of the complaint, a copy of the summons and a copy of the order to show cause. On February 14, 1963, petitioner and Ernest Winter appeared before the respondent court on the hearing of the order to show cause. At that time Ernest Winter asked for a continuance of this matter to a date after the expected birth of the child, which was estimated to be about April 1, 1963. Defendant, in requesting this continuance, gave as a reason that there could be an avoidance of the hearing on the order to show cause and a second trial of the matter on its merits when all this can be heard at one time after the birth of the child. The respondent court, without receiving any evidence whatsoever, indicated that it was the policy of the court to grant a continuance in paternity matters to a date after the birth of the child. By reason of this

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“policy,” the respondent court granted the motion of Ernest Winter and continued the matter to June 6, 1963.

Petitioner asks this court for a writ of mandamus to compel the respondent court to grant an immediate hearing on the order to show cause.

First of all, to resolve any questions of doubt that may exist, it seems unquestioned that a filiation proceeding may be instituted prior to the birth of the child in question.

(Guay

Superior Court,

147 Cal.App.2d 764 [305 P.2d 990].)

Civil Code section 196a provides in part: “The father as well as the mother, of an illegitimate child must give him support and education suitable to his circumstances. A civil suit to enforce such obligation may be maintained in behalf of a minor illegitimate child, . . . and in such action the court shall have power to order and enforce performance thereof, the same as under sections 137, 137.5, 138, 139 and 140 of the Civil Code, in a suit for divorce by a wife.”

Richter v. Superior Court

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KINGSLEY, J.

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