McGuire v. Superior Court

California Court of Appeal Mar 9, 1934 No. Docket No. 9621.Published

Before: Craig

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Holding. The court held that a superior court order awarding temporary child custody based solely on an investigator's report, while denying a party's request to present additional evidence as stipulated, was made without jurisdiction and is void.

Issues

Whether a superior court has jurisdiction to award temporary child custody without a legal hearing.
Whether a court exceeds its jurisdiction by awarding custody based solely on an investigator's report when the parties stipulated that such report would be considered alongside additional evidence.

Disposition. remanded

Quotations verified verbatim against the opinion

“We conclude, therefore, as above indicated, that the order itself was made without jurisdiction and is void.”

CRAIG, J.

A suit for divorce is pending between petitioner and his wife, Elsa Jeanne McGuire. The petition here is for the writ of

habeas corpus

and for an alternative writ of mandate, each of which was issued by this court.

AVe have reached the following conclusions: AYe have no doubt as to our power to entertain a petition for

habeas corpus,

where married parents of a child are separated and one desires to secure the custody of their child in possession of the other. (12 R. C. L., sec. 34; 29 Cor. Jur. 110.) In such a proceeding the question of first importance to be determined by the court is as to which parent should be awarded custod3r, having in mind the welfare of the child. This proposition needs no authority; That a superior court has no jurisdiction to award the possession of the child, under such circumstances, even tem

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porarily, to either parent without a legal hearing, except under a certain provision of the Civil Code not here involved ; that in the instant proceeding it appears that no legal hearing was held by the superior court as a basis for the order which was made awarding the temporary custody to the mother, and that consequently this proceeding is legal and proper and it is incumbent upon this court to make an appropriate order concerning the temporary custody of the child herein involved.

The petition recites that while the infant, Elsa Jeanne McGuire, was in the custody of petitioner, its father, by reason of an order issued by the superior court, he relinquished its possession to the mother; that the order of the superior court was rendered after said court had received the report of an investigator of said court, and that at the time of receiving said report petitioner requested permission to introduce evidence supporting his claim to the award of said child; that the court refused to permit any evidence, and based its order solely upon the investigator’s report. Previous to the making of said order a stipulation had been entered into by the petitioner and the mother of the child as follows: “The plaintiff’s order to show cause

McGuire v. Superior Court

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CRAIG, J.

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