In re White

SCHOTTKY, J. pro tem. Petitioner asks, by her application for a writ of habeas corpus, to have the custody of Robert [638]LaVoy White restored to her. A similar application, was made to the Superior Court, in and for the County of Tehama, and denied.

It is alleged in the petition that William D. White and Leathy Beryl White, paternal grandparents of the minor, are illegally detaining said minor and restraining him of his liberty.

The petitioner was the wife of LaVoy White, who obtained a divorce from her, the final decree being entered on May 15, 1940. The minor is the son of said parties, his age being six years. By the terms of the final decree the custody of said minor was awarded to the parents equally, each to have his custody for one-half of every year. The father was ordered to pay $15 per month for the support of the child during the time he was with the mother.

Subsequent to the filing of the petition this court made an order appointing a referee to hear all the issues involved, and report his findings thereon. Thereafter, respondent’s grandparents filed a notice of motion to discharge said writ, upon the ground that the issues involved were adjudicated fully, adversely to petitioner herein, in the prior habeas corpus proceedings involving the same parties and the same child. Said motion was heard by this court, and in the opinion denying said motion (49 Cal. App. (2d) 160 [121 P. (2d) 100]), this court said:

“Respondents rely upon In re Holt, 34 Cal. App. 290 [167 Pac. 184], where it was held that a prior hearing upon habeas corpus, under identical facts, in the superior court, is res adjudicata, where the custody of children is involved.

“Petitioner relies upon In re Livingston, 108 Cal. App. 716 [292 Pac. 285], where it is held that a prior hearing, in such a case, cannot be res adjudicata in an appellate court, if the decision of the superior court is based upon questions of law alone. We believe that the latter view must prevail here. Under no circumstances could it be said that respondents have any legal right to the custody of the minor. In the eyes of the law, they are mere interlopers who have no standing before this court. On the other hand, petitioner is the mother, and, under the terms of the decree, has a right to the custody at certain times. Her rights cannot be ignored, or lightly brushed aside. Furthermore, the petition recites that at the former hearing no evidence was introduced relating to the fitness of any of the parties to have the custody of the minor,