Tarling v. Tarling

California Court of Appeal Nov 1, 1960 No. Civ. 24725Published

Before: Fourt

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Holding. The court held that the trial judge did not abuse his discretion in denying the father's motion to modify child custody, as the father failed to demonstrate a change in circumstances warranting a modification or that the mother was unfit. The court further held that a judge is not bound to follow a child's stated preference regarding custody.

Issues

Whether the trial court abused its discretion in denying the father's motion to modify child custody.
Whether the trial court was required to follow the child's stated preference regarding which parent he wished to live with.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The question of the custody, support and education of a child in circumstances as are presented in this case are addressed to the sound discretion of the trial judge.”

“Under the particular circumstances of this case the judge was not bound to listen to the opinion of the child as to his preference and it follows, of course, that he was not bound to follow the opinion of the child.”

“We find no abuse of discretion upon the part of the judge in this case.”

FOURT, J.

This is an appeal from a judgment with reference to the custody of a child.

The parties hereto were married in Las Vegas, Nevada, on

[9]

November 16, 1947. One child, David, was born as the issue of the marriage. At the time of the divorce action the boy was about 4years of age. The plaintiff, hereinafter referred to as the mother, was granted an interlocutory decree of divorce on November 1, 1954, and was awarded the custody of the child. The defendant, hereinafter referred to as the father, was ordered to pay $15 per week for the support and maintenance of the child and granted the right of reasonable visitations. There is no copy of the final judgment in the record before this court, but presumably it contained substantially the same provisions as the interlocutory judgment contained with reference to the custody, support and maintenance of the minor child.

On May 7, 1957, it was stipulated between the parties that the order of November 1, 1954, be modified in one respect to the end that the father could have the child during the summer school vacations. In August 1957 the father sought the full custody of the child and on September 4, 1957, pursuant to stipulation, the judge appointed a court investigator to investigate and file a written report. Such a report was filed. The investigator recommended that the custody of the child be awarded to the mother and that the father have rights of visitation. The record does not disclose exactly and completely the contents of the order which was made by the court with reference to the father’s petition for a modification of the orders theretofore made.

On August 19, 1959, the father made an affidavit which set forth, among other things, that on November 5, 1957, the court made an order “pursuant to stipulation” which in effect provided that neither party should remove the child from Los Angeles or Orange Counties except by written consent or order of the court and that neither party should speak of the other in a derogatory manner; and that “It is further stipulated that defendant’s motion for custody of the minor child is denied.”

The affidavit of the father further set forth that conditions and circumstances surrounding the parties had changed since the last order of the court and that the child should be with the father subject to the right of visitations by the mother.

Tarling v. Tarling

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FOURT, J.

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