Kentera v. Superior Court

PETERS, P. J. The trial court denied a petition by a minor, aged 14, to have his paternal grandmother appointed his guardian. The child appealed from that judgment. The child then petitioned the superior court to appoint his grandmother his temporary guardian pending the appeal. The trial court, over the protests of the child’s mother, who has legal custody, indicated that it believed that it had jurisdiction of that petition. Upon the petition of the mother, this court issued its alternative writ of prohibition preventing the lower court from acting.

[828]The facts, more in detail, are as follows:

The petitioner, Virginia Lee Kentera, was divorced from Edward C. Kentera in 1940. As modified in 1943, the divorce decree gave joint legal custody of Richard Steven Kentera, the sole issue of the marriage, to both parents, with physical custody in the mother, and rights of visitation to the father. Virginia has since married one Boesel, and resides with him in Ukiah. Edward has also remarried and lives with his wife in Palo Alto. The paternal grandmother of Richard is Angelina Kentera, who resides in San Francisco.

On July 13, 1951, Richard, then 14 years of age, who was then temporarily visiting his grandmother in San Francisco, filed a petition pursuant to section 1440 of the Probate Code1 requesting that his grandmother be appointed his guardian. The petition, after alleging the jurisdictional facts, avers that Richard “is in need of a guardian,” and that Angelina is a fit and proper person to act as such guardian and has consented to serve. While the petition avers that Richard’s mother, Virginia, has been awarded his custody, there is no averment that Virginia is not a fit and proper person to act as guardian.

Virginia filed opposition to Richard’s application, in which, after setting forth the facts entitling her to Richard’s custody, she denied that the child was in need of a guardian, and denied that Angelina was a fit and proper person to act as guardian. In connection with this last denial she averred that Angelina was about 60, that she lived with her husband who is not related to Richard; that no young people reside in that home; that Angelina and her husband operate a restaurant in San Francisco which consumes most of their time and attention; that for these reasons Angelina will be unable to give Richard proper care and supervision; that Angelina and her husband, in their home, do not use the English language but converse in a foreign language. Virginia further averred that she resides with her present husband in Ukiah, and that in the family are three other children, all boys, ages 17, 9 and 7; that the four boys normally play and mingle together; and that it would be in the best interests of the child to remain with his mother.