In re Swindall

WARD, J. A writ of habeas corpus was issued by the court upon the application of Inez Dean, the paternal grandmother of Leslie Scott Swindall, a minor. The minor is the issue of the marriage of Leslie Elmer Swindall, and Leila [178](sometimes referred to as Lela) Hazel Swindall. By the terms of a decree of the Circuit Court of the State of Oregon for Multnomah County, on May 31, 1944, dissolving the marriage of the parents, their minor son was awarded to the custody of Inez Dean with right of visitation by the parents. On May 2, 1946, a petition filed on behalf of the mother for modification of the custody decree was denied by the Oregon court. At the time of filing the petition for modification the mother had remarried and was, and is now, Leila Hazel Hawkins. During the summer of 1948 Mrs. Hawkins, with the consent of the father and paternal grandmother, removed the child from Oregon for a visit to Contra Costa County in California. The child was not returned to Oregon. Subsequently an application for letters of guardianship of the person and estate of the minor Leslie Scott Swindall was filed by the mother in Contra Costa County. The application for guardianship was followed by the present habeas corpus proceeding. This court, with the consent of the respective litigants, appointed a judge of the superior court of the state of California presiding in Contra Costa County, as a referee to pass upon the issues raised by the return in the habeas corpus proceeding pending in this court. A stay as to final action on the guardianship petition pending in Contra Costa County was ordered until the determination of the habeas corpus proceeding, with the right to hear the two matters at the same time.

Under such facts and circumstances as appear in this proceeding the “only ground” upon which a person who has been denied custody of a minor in a sister state but has physical possession in this state may prevail is to present proof of “changed circumstances warranting a modification of the custody order.” (In re Bauman, 82 Cal.App.2d 359, pp. 361-362 [186 P. 2d 154]; Foster v. Foster, 8 Cal.2d 719 [68 P.2d 719]; In re Kyle, 77 Cal.App.2d 634 [176 P.2d 96].)

The referee, Honorable Homer Y. Patterson, made the following report: ‘ ‘ The Referee finds that the custody of the minor was awarded to the petitioner in 1944 by decree of divorce duly given and made by the Circuit Court of the State of Oregon for the County of Multnomah, and thereafter on the 2d day of May, 1946, a hearing was had before said Court on an application filed by respondent for the modification of the said decree and to give custody of said minor to the respondent herein. That said Court by its order duly