Jacobs v. Superior Court

[189]

GIBSON, C. J.

Betty and Gerald Jacobs, minors, and their maternal grandparents, Joe and Anna Wolf, seek a writ of prohibition to restrain Honorable Orlando II. Rhodes, Judge of the Superior Court of Los Angeles County, from trying any issue of lav/ or fact presented in proceedings involving the custody and guardianship of the minors. They also seek a writ of mandamus to compel a transfer of the proceedings to another judge. The application is based upon the refusal of Judge Rhodes to grant a motion for his disqualification.

Betty and Gerald are the children of the real party in interest, Victor Jacobs, and his first wife, who died in 1947. Several months after the death of their mother, the children went to live with their maternal grandparents. Betty is now 17 years of age, and Gerald is approaching 15.

On January 20, 1956, the father petitioned for a writ of habeas corpus by which he sought custody of both children. The grandparents filed a return to the writ and a petition to be appointed guardians of the children. The proceedings were consolidated for trial and were heard by Judge Rhodes. On May 7, 1956, pursuant to stipulation, Judge Rhodes made an order under which the children were permitted to remain with the grandparents.

The father renewed his petition for habeas corpus on January 31, 1958, and the grandparents renewed their petition for guardianship. On November 25, 1958, after trial, Judge Rhodes rendered judgment in the habeas corpus proceeding awarding the father sole custody of Gerald but permitting him to allow Gerald to reside with his maternal uncle, Frank Wolf. The judgment awarded the father and grandparents joint custody of Betty and provided that at any time after April 1,1959, the court might, upon application of the father, award him sole custody of Betty. Pursuant to stipulation, the father was ordered to make monthly payments to the grandparents for Betty’s support and similar payments to the uncle while Gerald was in his custody. Judgment was also rendered denying the petition of the grandparents to be appointed guardians of the minors. On May 29, 1959, Judge Rhodes, pursuant to an ex parte application, awarded the father sole custody of Betty, directed the grandparents to deliver the children into the father’s custody on June 19, and further directed that if the children refused to accompany the father to his residence the sheriff should take them into custody. A motion to vacate the order of May 29 was made by the grandparents on June 16 and denied by Judge Rhodes.