Lavell v. Adoption Institute

SHINN, P. J.

Frederick Lavell brought an action against The Adoption Institute, a California corporation, seeking custody of a child named Baby Lavell who was in the custody of the institute which answered the complaint, alleging its right to custody of the baby on the ground that its mother Mary Kristek, a single person, had released the baby to the institute. The judgment declared that plaintiff is entitled to custody of the child, and the institute has appealed.

In the trial the material issue was whether the child was legitimate, in which event, under the circumstances in evidence, the consent of both its parents to adoption would be required (Civ. Code, § 224), or illegitimate, in which event the consent of the mother alone would have been sufficient (Civ. Code, § 200). The facts were stipulated as follows: “Mb. Abeles: . . . Frederick Lavell commenced living with Mary Kristek in September of 1957 in the State of Michigan; at that time Mr. Lavell was married to someone other than Mary Kristek; said marriage being terminated by divorce in Michigan in December, 1957; One child, Frederick Lavell, the Third, was born to the union of Frederick Lavell and Mary Kristek on the 20th of July, 1958, in the State of Michigan ; The parties, that is, Frederick Lavell and Mary Kristek, together, moved to California in February of 1959; at the time of the movement to California, Mary Kristek was pregnant with a child, which was delivered on the 19th of July, 1959, in Los Angeles County; The parties, that is, Frederick Lavell and Mary Kristek, again, lived together continuously as husband and wife from September, 1957, up to July 11, 1959; at all times while living together they represented themselves to the public as husband and wife; the parties never took part in a marriage ceremony in any state; On July 11, 1959 Mary Kristek left the home of Frederick Lavell with Frederick Lavell, the Second,—the first child that had been born to the parties; and without the prior knowledge of Frederick Lavell, Baby Boy Lavell was born to Mary Kristek on the 19th of July, 1959, and placed immediately in the care

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of The Adoption Institute by Mary Kristek; Soon after the birth of Baby Lavell, Mary Kristek alone relinquished this child for an adoption as a single woman; this relinquishment in the form prescribed for single relinquishments was duly filed with the Department of Social Welfare on the 4th of August, 1959; and thereupon this child, Baby Lavell, was placed in the hands of prospective adopting parents; Frederick Lavell upon the departure of Mary Kristek made diligent search to attempt to ascertain her whereabouts and was unsuccessful initially; he did not learn of the whereabouts of Mary Kristek until the first part of August, at which time Mary Kristek and Frederick Lavell, the Third, were both residing in the State of Michigan; Frederick Lavell then returned to Michigan and commenced an action there to recover the custody of both children; At the time that he returned to Michigan he filed an affidavit or completed an affidavit acknowledging paternity of both Frederick Lavell, the Third, and Baby Lavell, the second child; At the time that he was in the State of Michigan he learned of the whereabouts of the second child, Baby Lavell, and returned to California ; He thereupon made demand of the child upon The Adoption Institute; and upon the refusal of The Adoption Institute to deliver the child to him he commenced the present action; Further stipulated, that Frederick Lavell has hired a couple and has secured a house in which he would propose to care for the child should custody be awarded to him; There are no facts presently known to either party which would indicate unfitness of any of the parties to the action; Frederick Lavell tendered payment for doctor bills for—in connection with the delivery of the child; said payments were, as I understand it, accepted initially by the doctor, then returned to Frederick Lavell; Further stipulated, that if Mr. Lavell were present in court and sworn he would testify that since the birth of the second child, Baby Lavell, he has requested Mary Kristek to marry him, and she has refused; and it is his desire to legitimate the second child, Baby Lavell. Mr. Marsh: So stipulated.”