Matter of Forrester

SLOSS, J.

The respondent, Annie I Wollam, applied for appointment as guardian of the person of the minor above named. The petitioner was the maternal grandmother of the minor, the mother being dead. The amended petition of respondent alleged that appellant, the father of the minor, was not a fit and proper person to be appointed guardian, and was- incompetent to act as such. Appellant answered, denying his incompetency, and asking that he be appointed guardian.

The court below found as facts that the minor was, and had been for fifteen months prior to the commencement of the proceeding, under the care of and solely supported by respondent and her husband; and that appellant, having the ability so to do, had willfully failed and neglected to maintain said minor and to provide her with the common necessaries of life. From these facts it drew the conclusion of law that the appellant is not a fit and proper person to be appointed guardian of said minor child, and is incompetent to act as such. Judgment was accordingly entered directing that letters be issued to respondent. The contestant, Coover W. Forrester, appeals from this judgment.

The minor was of the age of nineteen months when this proceeding was instituted. Under the provisions of section 1751 of the Code of Civil Procedure, it is made the duty of the court to appoint the father or mother of a minor child under the age of fourteen years, if such parent is “found by the court competent to discharge the duties of guardianship.” Inasmuch as the presumption of law is in favor of competency, “the section is to be construed as if it read that the father or mother is to be appointed if not found by the court incompetent.”

(In re Campbell,

130 Cal. 380, [62 Pac. 613].) Accordingly, where the father is competent, he is entitled to

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letters of guardianship in preference to the grandmother, even though the court may find that the child’s health and welfare would be promoted by granting guardianship to the grandmother.

(Guardianship of Salter,

142 Cal. 412, [76 Pac. 51].) In a case like this, the primary subject of inquiry is, then, the competency of the parent applying to act as guardian. If found competent, he or she must be appointed as against a more distant relative or a stranger. To this rule there appears to be no exception except that declared by subdivision 4 of section 246 of the Civil Code. Under that section, a parent forfeits the right of guardianship if he “knowingly or willfully abandons, or having the ability so to do, fails to maintain his minor child under the age of fourteen years . . .”