Younger v. Younger

Van Fleet, J. The parties hereto were husband and wife, and had issue of their marriage one child, a son, Hiatt Tisdale Younger. In February, 1891, by a decree of the superior court of Santa Clara county rendered in an action brought for that purpose by appellant here against the respondent, the parties were divorced upon the ground of respondent’s extreme cruelty; and by the decree the custody of said child, then an infant about one year of age, was awarded to the mother. Immediately after the divorce the mother removed with the child to Yolo county, and took up her residence in that county in the family of her grandfather, one Gr. W. Hiatt. Subsequently, on July 31, 1891, by a proceeding had before the judge of the superior court of Yolo county, the said child was, by the consent of the mother, duly and regularly adopted by said Gr. W. Hiatt, in accordance with the provisions of the Civil Code, and assumed the family name of Hiatt.

In April, 1893, respondent filed a petition in the superior court of Santa Clara county, in said divorce proceeding, asking a modification of the decree therein with reference to the custody of said child, and praying that the custody thereof be awarded to him, upon the ground that the mother had abandoned the child to the control of others, and had since married again. Appellant answered said petition, setting up, among other things not necessary to mention, the facts above recited as to the divorce and adoption, and denying the jurisdiction of the court to make any order in the premises.

The court found the facts with reference to said divorce and adoption in all respects as alleged, but, nevertheless, made an order modifying the divorce decree in so far as the same related to the custody of the child, by requiring that the respondent be permitted to see said child at all reasonable times, without limitation as to date, and that he be “permitted to bring said child to Santa Clara county .... in the month of June of each year,” and retain its custody during said month.

From this order the appeal herein is prosecuted.

[379]The validity of the order is challenged upon various grounds, only one of which, however, need be noticed.-

It is contended by appellant, and, we think, correctly, that the Santa Clara court had no jurisdiction to make the order appealed from, for the reason that its jurisdiction over the child had ceased and determined absolutely upon its adoption. The Civil Code provides for the adoption of minor children and the circumstances and conditions under which such adoption may be had. Section 224 of that code provides that “ a legitimate child cannot be adopted without the consent of its parents, if living .... except that consent is not necessary from a father or mother deprived of civil rights or adjudged guilty of adultery or of cruelty, and for either cause divorced.” The proceedings for adoption in this instance seem to have been in strict accordance with this and the other provisions of the code upon the subject; and, in fact, their regularity or sufficiency are in no respect questioned. The jurisdiction of the court in Santa Clara county over the child in the divorce proceeding grew out of, and depended, solely upon, the fact that it was the child of the parties to that action; as such the law gave that court jurisdiction to award the custody of the child as it might deem for its best interest, and to direct provision for its maintenance and support. By the adoption proceeding, however, the status of the child was wholly changed; it became ipso facto the child of another, and ceased to sustain that - relation, in a legal sense, to its natural parents. “A child, when adopted, may take the family name of the person adopting. After adoption the two shall sustain toward each other the legal relation of parent and child, and have all the rights and be subject to all the duties of that relation.” (Civ. Code, sec. 228.)