In re Macedo ex rel. Macedo

SCHOTTKY, J. Petitioner, the father of Madera Macedo, a minor of the age of 4 years, filed in this court a petition for a writ of habeas corpus praying that the care, custody and control of said minor child be restored to him.

The petition alleged that petitioner and his wife, Bonnie Macedo, were divorced by an interlocutory decree entered in the Superior Court of Solano County on October 6, 1952, [277]and that the care, custody and control of the minor was awarded to the mother, with visitation rights in petitioner.

The petition alleged further that on February 2, 1953, the same superior court made an order taking the custody from said mother upon the ground that she was not a fit and proper person to have the care, custody and control of said child and giving the care, custody and control of said child to the probation officer of Solano County.

The petition then alleged that the mother still had the care, custody and control of said child and that since the order of the superior court had made no finding that petitioner was not a fit and proper person to have the care and custody of said child, the court was without jurisdiction to grant its care and custody to the probation officer and that the said child was unlawfully kept in the custody of the said probation officer.

This court issued an order to show cause why a writ of habeas corpus should not be issued, said order to show to be served upon Bonnie Macedo, the mother, and Jule 0. Pritchard, the probation officer.

An opposition and answer to the petition was filed by Bonnie Macedo, the mother, stating:

“. . . that she is now residing at Sacramento, California and that said child is now with her and that she has said child in the custody of another person during her working hours; but alleges, that she has said child in her custody by reason of the fact, that when said child was placed in the custody and control of the Probation Officer of the County of Solano, by an Order of the Superior Court of the State of California, in and for the County of Solano, made and granted and entered by the Honorable Harlow V. Greenwood on the 2nd day of February, 1953, it was stipulated and stated that she was to retain custody of said child until demand was made by said Probation Officer upon her to surrender the custody of said child. That demand has never been made upon her to surrender said child by the Probation Officer although he has at all times been advised by her of the whereabouts of said child; that further said Bonnie Macedo has also advised the said petitioner herein, Joseph A. Macedo, of the whereabouts of said child.”