Clark v. Superior Court (1912) · DecisionDepot

Clark v. Superior Court

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Nov 6, 1912 No. Civ. No. 1251.Published

Before: THE COURT. —

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Holding. The court held that the superior court acted within its jurisdiction in issuing a temporary custody order for an infant, as the order was supported by evidence and consistent with the court's authority to prioritize the welfare of the minor pending a final guardianship hearing.

Issues

Whether the superior court exceeded its jurisdiction in ordering a change in the temporary custody of a minor pending a final guardianship hearing.
Whether the evidence presented was sufficient to support the superior court's temporary custody order under section 1747 of the Code of Civil Procedure.

Disposition. denied

Quotations verified verbatim against the opinion

“It appearing that the superior court has not exceeded its jurisdiction in making the order complained of, the writ herein sued out will not lie.”

Synopsis

APPLICATION for Writ of Certiorari to annul an order of the Superior Court of Los Angeles County relating to the temporary custody of an infant child.

The facts are stated in the opinion of the court.

THE COURT.

Application in

certiorari

to annul an order made by the superior court relating to the temporary custody

[307]

of an infant aged two and one-half years, named J. Ross Clark II.

The child is the son of Walter Miller Clark and Virginia M. Clark (Tanner). The father was lost at sea on or about the fifteenth day of April, 1912, and a few months thereafter, and on or about the twenty-sixth day of September, 1912, the mother of the boy married one Tanner at the city of New York. Immediately upon her marriage she departed for Paris, France. At the time of her departure from California for the east she left the child at her mother’s place of residence in charge of ■ Margaret Heffron, a nurse. After the mother had gone away J. Ross Clark, the parental grandfather of the boy, obtained the custody of the child by causing its nurse to take it to his home. He had previously been appointed, with the consent of the mother, as guardian of the estate of the "minor. On October 8, 1912, he filed a petition in the superior court asking for letters of guardianship of the person of the boy. At the time this petition was filed an order was made by the superior court giving temporary guardianship of the person of the minor to the petitioner pending the final hearing on the application. When news of the latter proceedings was transmitted to the boy’s mother, who was then in France, she immediately returned to the city of Los Angeles and proceeded in the superior court to file an answer to the petition mentioned of J. Ross Clark and to ask that the temporary custody of the minor be given to her. The court after hearing the parties made an order in the following form:

“It is ordered, that the temporary custody of the minor J. Ross Clark, II, be restored to his mother, Virginia M. Tanner, and that that portion of the order herein, dated October 8th, 1912, providing for temporary guardianship of the minor be set aside and that the question of the guardianship of the person of said minor be left to be determined at the hearing herein on November 20th, 1912. It is further ordered, that Miss Margaret Heffron be retained as the nurse of said child, and it is further ordered that said nurse take said child to the home of its grandparents, Mr. and Mrs. J. Ross Clark, at least daily, until the further hearing herein, and said nurse to take said child to said home of Mr. and Mrs. J. Ross Clark at such other times as, in the judgment of said

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it appears to the satisfaction' of the court, either from a verified petition, or from affidavits, that the welfare of the minor will be imperiled if such minor is allowed to remain in the custody of the person then having the care of such minor, the court may make an order providing for the temporary custody of such minor until a hearing can be had on such petition.” It seems to be admitted that the first order appointing J. Ross Clark temporary guardian of the minor was made without authority and may be treated as of no effect. As to the application of the mother upon which the court in the second instance acted, that application may be considered as one on behalf of the parent under the provisions of the section quoted to remove the minor from the temporary custody of J. Ross Clark pending hearing on the petition for letters of guardianship. Proceedings affecting infants and the appointment of guardians are special in their nature and must be had in accordance with the procedure outlined by the code. The superior court,'before it was authorized to provide for a change in the temporary custody of the minor, must have had a proper motion presented to it and some evidence to the fact that the best interests of the child would be imperiled unless such order was made. Such a motion was presented on behalf of Mrs. Tanner and if the action taken can be sustained by any evidence whatsoever which was presented to the superior judge, however slight that evidence may be, we cannot here disturb the conclusion there made. We think that the order finds some support in the affidavits of the parties and testimony heard. To say that the best interests of the child shall be imperiled before the action indicated by section 1747 can be taken, amounts to no more, in our opinion, than to say that whenever it appears to be for the best interests of the minor such change of custody may be ordered. And this consideration for the welfare of the child is of first importance; the parent of a minor has no property right in his or her offspring and the privilege of the parent to have awarded to it' the custody of the child is only a matter of right when the parent is found to be reasonably fitted to become such guardian. As is said in

incompetency of their natural guardians has been too long established to be seriously questioned." It may be here noted that in passing upon the question as to where the temporary custody of this infant should be lodged, the court was careful to limit the privileges of the mother in that regard. Reference to the order shows that the parental rights accorded to her pending final hearing were restricted and made subject to certain discretionary powers affecting the custody of the child as they were conferred upon the nurse Heffron, and in the exercise of which discretion the mother was left no right of interference. For instance, the order required the nurse to take the child to the home of Mr. and Mrs. J. Ross Clark at least daily, that is, at least once a day. No direction was given as to the length of these daily visits, that matter being also left to the discretion of the nurse. She was also authorized, as her best judgment might direct, to take the child there at such other times as she might deem appropriate and ' advisable. Further, the order provided that the child might be taken upon automobile rides by Mr. and Mrs. Clark, the only limitation to the exercise of that privilege being that the nurse should on such occasions accompany them. Doubtless the court, in view of the showing that the mother had frequently absented herself from her child and had for two nights and a day at a time remained in the same house with her offspring without visiting it, deemed it best to see that the nurse who had attended it so constantly for more than a year should be retained as the actual custodian of the boy. At any rate, this court cannot say, viewing the evidence upon which the court was called upon to act, that the judge was without authority to order the child into the limited custody of its mother pending the day set when the question of the mother’s fitness to be the guardian of her son might be fully inquired into. The fact that this court, under the- evidence exhibited, might have felt impelled to act differently than did the superior court, and might have, under such evidence, refused to disturb the custody of the minor pending final hearing, when the matters in issue as to the abandonment by the mother of her child, or her fitness to be made the guardian of its person, could be fully inquired into, cannot have any influence in the decision of the legal questions presented on, this application.

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Synopsis

THE COURT.

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