Moffitt v. Moffitt

FRIEDMAN,

J.

A wife appeals from that part of an interlocutory divorce decree awarding custody of her two children to her husband. The family had been living in Yuba City. At the time of the parents’ separation in April 1963 the elder child was 2 years old, the younger 1 year old. At first the father acknowledged the mother’s custody of the children.

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Some weeks later he became concerned with the kind of care they were receiving. At the end of May 1963, without his wife’s permission, he went to a baby sitter’s home, picked up the two babies and brought them to his parents’ home in Yuba City, where they have lived ever since.

In June 1963 the father filed a divorce action seeking custody of the children. The mother had difficulty in getting legal representation, primarily because of lack of money. Eventually she was able to get an attorney, who filed a responsive pleading in the divorce case and brought on for hearing an order to show cause which included the question of custody. The custody matter was partly heard in May 1964 and was referred to the probation officer for investigation and report. By this time the mother had moved to Sacramento, where she secured work. She proposed to continue working and, if awarded the children, to utilize a publicly operated day care facility. The probation officer found that she wanted and loved her children; that she went to the grandparents’ home monthly to visit them; that her home and that of the grandparents offered equal physical conditions; that her housekeeping standards were excellent. The report gave no indication of unfitness on the mother’s part. The probation officer also investigated the situation at the grandparents’ home in Yuba City. He recommended that the court award custody to the father and “physical custody” to the father’s parents. By the time the probation officer’s report was filed, at the end of May 1964, the children had been in their grandparents’ home for 12 months.

Counsel for the mother made vain attempts to bring the custody matter on for further hearing but could not get a hearing date until October 1964. At that time there was testimony from the parents regarding their conflicting custody hopes. The father proposed continuation of his parents’ home as the children’s residence. He testified that he himself came to his parents’ home only on weekends, being employed at another location. In November the trial judge filed a brief opinion awarding custody to the father. At the divorce trial the parties stipulated that the evidence relating to custody had not changed. In February 1965 the court signed findings and an interlocutory decree of divorce awarding custody to the father. The court found that award of the custody to the father was in the children’s best interests. There was no finding that the mother was unfit; on the contrary, the court found her allegation of fitness was true. By the time the inter