Nadler v. Superior Court

California Court of Appeal Oct 30, 1967 No. Civ. 11775Published

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Holding. The trial court erred by failing to exercise its judicial discretion in a child custody matter, erroneously ruling as a matter of law that a parent's homosexuality rendered her unfit for custody.

Issues

Whether a trial court may determine a parent's fitness for child custody as a matter of law based solely on the parent's homosexuality.
Whether a trial court fails to perform its duty when it refuses to exercise its discretion under the mistaken belief that it has none.

Disposition. Peremptory writ of mandate issued.

Quotations verified verbatim against the opinion

“the trial court failed in its duty to exercise the very discretion with which it is vested by holding as a matter of law that petitioner was an unfit mother on the basis that she is a homosexual.”

“We therefore hold that the trial court erred in failing to exercise its discretion and ruling as a matter of law that petitioner was an unfit mother.”

THE COURT.

Petition for a writ of mandate brought to compel the Superior Court of Sacramento County to hear further testimony and take additional evidence on the issue of the effect of petitioner’s homosexual conduct upon the well-being of petitioner’s daughter. The father of the child has appeared herein as the real party in interest.

This proceeding arose out of a divorce action brought by petitioning wife, and subsequent child custody proceedings therein. It is unnecessary to set forth in detail the various legal proceedings taken in this matter, as we are here concerned only with the order of the Sacramento Superior Court, filed October 5, 1967, awarding custody of petitioner's daughter—aged five—to the father and the basis of such order as grounds expressed by the court. The pertinent part of that order reads as follows:

“The court finds from the evidence and stipulations by counsel for the parties hereto that:

“1) The Plaintiff is a homosexual female engaging in sexual acts with other females.

“2) The homosexuality of plaintiff as a matter of law constitutes her not a fit or proper person to have the care, custody and control of . . . the minor child of the parties hereto, therefore, it will be for the best interest and welfare of said minor child to now place her in the custody of her father, defendant herein. ’ ’

The net effect of this order is to remove the child from petitioner for the sole reason that petitioner is a homosexual female and therefore not a proper person to have custody of her daughter

as a matter of law.

An undenied allegation declares that the trial judge stated in court that he was not exercising his discretion and was required as a matter of law to award custody to the father. Both sides stipulated in the trial court that both the mother and father were able and willing to provide the child with physical care and support.

In a divorce proceeding involving the custody of a child, primary consideration must be given to the welfare of the child.

(Sanchez

Sanchez,

55 Cal.2d 118, 121 [10 Cal.Rptr. 261, 358 P.2d 533];

Gudelj

Nadler v. Superior Court

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THE COURT.

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