Beltram v. Alcantar

BALTHIS, J. After the death by automobile accident of the mother and father of Javier Castellanos, a minor child 11 months old, two petitions were filed asking for the appointment of a guardian of the person and estate of said minor. One petition asked for the appointment of the paternal aunts of the child, the other requested the appointment of the maternal uncle. After the consolidated hearing, the court appointed the maternal uncle, Henry Alcantar. The losing petitioners appeal.

The child was born June 24, 1959, the mother being age 18, the father age 20. The parents of the child were not married. Plans for a marriage had been discussed prior to the fatal accident on May 6, 1960, but these unfortunately were not carried out prior to the accident. There is no question about the paternity of the child.

The appellants (the paternal aunts of the child) take the position that there was a legitimation of the child under section 230 of the Civil Code. This section provides that a child is legitimated for all purposes when the father publicly acknowledges his parentage, receives the child into his family with the consent of his wife, if married, and otherwise treats the child as if it were legitimate. The appellants contend there was a public acknowledgment of the son by the father and also that the child was received into the father’s family. They offered evidence in support of their contention.

[192]In our opinion, however, this case does not depend upon whether or not there was legitimation prior to the death of the parents. While the mother and father are alive and there is a contest as to custody the issue of legitimation under section 230 may become important because under section 200 of the Civil Code, the mother of an illegitimate child “is entitled to its custody, services, and earnings.” If the child is legitimated while both parents are living, their rights to claim custody are equal. (In re Navarro, 77 Cal.App.2d 500, 505 [175 P.2d 896].) But here the issue of legitimacy is not determinative in deciding whether the relatives of the mother or the relatives of the father should be preferred as guardians. Under section 1407 of the Probate Code, with the exception of the parental priority, “relatives” of the child are in the same order of priority with one another.

In the instant case, even if we assume that legitimation was established under section 230, the court would still have to determine the true and only issue in the ease— the appointment of which person as guardian would be in the best interests of the child?