Guardianship of Smith

TRAYNOR, J.

I concur in the judgment.

The objection to the rule that custody must be awarded to the parent unless he is unfit carries the harsh implication that the interests of the child are subordinated to those of *95 the parent when the trial court has found that the best interests of the child would be served by giving his custody to another. The heart of the problem, however, is how the best interests of the child are to be served. Is the trial court more sensitive than the parent to what the child’s best interests are, better qualified to determine how they are to be served? It would seem inherent in the very concept of a fit parent that such a parent would be at least as responsive as the trial court, and very probably more so, to the best interests of .the child. The rule requiring that custody be awarded to such a parent in preference to a stranger does not operate to subordinate the interests of the child to those of the parent; it merely serves to define the area of the parent’s responsibility for the welfare of the child. The court’s statutory duty to be “guided by what appears to be for the best interests of the child in respect to its temporal and mental and moral welfare” (Prob. Code, § 1406) encompasses the view that the child’s welfare is part of the responsibility of a fit parent.

One gains perspective by recalling that families are ordinarily allowed to function without outside interference though their wisdom in the upbringing of children may vary as widely as the physical heritage or economic advantages they give their children. Unless the upbringing of the child is so defective as to call for action by the juvenile court, it is unlikely that an outsider will challenge the parental custody or seek by legal process to prove that the child’s welfare would best be served elsewhere. It is generally understood that the stability of established family units would be jeopardized by outside interference.

It is only when the family is dissolved by death, divorce or separation that conflicting claims to custody are likely to arise. If the parents are divorced and no third parties are involved, the court of necessity arbitrates whatever conflicting claims the parents may have to the custody of the children. If one parent dies, however, or upon divorce is unable or unfit to have custody of a child, outsiders may enter the picture and attack the competence of the other parent to have custody or contend that the child would be better off with them. The problem may also arise if the parent awarded custody at the time of divorce dies or for other reasons is no longer able to care for the child, or if one or both parents have through necessity been unable for a time to care for the child *96 themselves, but thereafter seek to regain custody from outsiders whose assistance they had solicited in the interim.

Ordinarily in any of these circumstances the determination of what course will best serve the interests of the child will involve the consideration of numerous imponderables. All things being equal, it is clear that the parent should have custody. All things are ordinarily not equal, however. The outsider may be able to offer the child greater material advantages. In the case of the death of the parent having custody after divorce, the child may be on more intimate terms with relatives or a new spouse of the deceased parent than with the other parent who has not had custody. If the child has not been in the custody of either parent he may have been successfully integrated into the home of the person who has been caring for him. The parent seeking custody may have remarried so that if custody is awarded to him, the child will be faced with the problem of adjusting to a stepparent. On the other hand, the importance of preserving the relationship between a natural parent and his child cannot be gainsaid. Even in a case where the foster parent treats the child as his own, the child may still suffer from the lack of a natural parent in the eyes of his playmates, or natural children or other relatives of his foster parent may discriminate against him. If he gets into trouble, members of his foster family may be tempted to point out that he is not really one of them. Moreover, even if the child is required to make some sacrifice to be with his natural parent or adjust to a new environment, it does not necessarily follow that his welfare will be correspondingly impaired. It may not be to the best interest of the child to have every advantage. He may derive benefits by subordinating his immediate interests to the development of a new family relationship with his own parent, by giving as' well as receiving. Thus, although a change in custody from an outsider to a parent may involve the disruption of a satisfactory status quo, it may lead to a more desirable relationship in the long run.

The facts of the present case aptly illustrate the problem. The two children lived with their mother and half sister until their mother’s death. At that time they were 8 and 6 years of age. Their home was disrupted by their mother’s death, and both their half sister and their father now seek their custody. The trial court has found that both are fit and proper persons. It may be assumed that the children wish to stay with their sister and that their lives will be *97 less disrupted at this time if they are allowed to remain with the relative they know best. On the other hand, unless custody is given to their father they will remain to all intents and purposes orphans. If their friends inquire about their father they will either have to fabricate a story or admit their illegitimacy. If their sister marries, her husband might be unwilling to have them in his home. If the children are awarded to their father, they will become legitimate. (Civ. Code, § 230.) They will be placed in a normal home environment with one natural parent and will suffer social embarrassment only to the extent that their past may become known to their friends. In all likelihood the care and support they will receive from their father will be greater if they move into his home than if they remain essentially strangers to Mm. There are thus many considerations that support the conclusion that their best interests would be served by awarding custody to their father. There are also considerations that support the contrary conclusion of the trial court.

Psychology is not an exact science. If expert testimony were introduced in cases such as this in all probability it would be in conflict. The ordinary judge as well as the ordinary parent lacks the omniscience accurately to evaluate all of the various considerations that may enter into a custody problem. “The essence of custody is the companionship of the child and the right to make decisions regarding Ms care and control, education, health, and religion.” (Lerner v. Superior Court, 38 Cal.2d 676, 681 [ 242 P.2d 321 ].) If a parent is fit he will be vitally concerned with the best interests of Ms child. By leaving to him the responsibility as to how those interests will be best served the court simply recognizes that “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder. Pierce v. Society of Sisters, supra, [ 268 U.S. 510 , 45 S.Ct. 571 , 69 L.Ed. 1070 , 39 A.L.R. 468 ], And it is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter.” (Prince v. Massachusetts, 321 U.S. 158, 166 [ 64 S.Ct. 438 , 88 L.Ed. 645 ].)

Cases may arise in which the child’s interests would be seriously prejudiced by awarding custody to Ms parent. In such cases, however, the parent’s insistence on his right to custody despite the harm that would clearly result to Ms *98 child will itself be evidence of his unfitness. (In re Bensfield, 102 Cal.App. 445, 449 [ 283 P. 112 ] ; Guardianship of Casad, 106 Cal.App.2d 134, 152 [ 234 P.2d 647 ].)

In the present case the appeal is upoA the judgment roll alone, and for the purposes of this decision we must accept the finding of the trial court that the father is a fit and proper person to be appointed guardian of the children. It bears emphasis, however, that the father of an illegitimate child comes before the court in at best a questionable light.

Although past indiscretions do not necessarily demonstrate present unfitness (Prouty v. Prouty, 16 Cal.2d 190, 193-194 [ 105 P.2d 295 ] ; In re Green, 192 Cal. 714, 721 [ 221 P. 903 ] ; see, also, Clarke v. Clarke, 35 Cal.2d 259, 261-262 [ 217 P.2d 401 ]), such a father should be required to explain why he has not legitimated his child. A father who has the power to do so but does not, demonstrates his unfitness by his willingness to inflict upon his child the status of illegitimacy. Such a father must not be allowed to bargain with the court by offering to exercise his power to legitimate in exchange for custody. On the other hand, a desire to secure custody may be the outgrowth of a moral rehabilitation reflected in an effort to undo a past wrong by legitimating the child.

A father may legitimate his child by marrying the mother (Civ. Code, §215) or “by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child.” (Civ. Code, § 230.) On the record before us we must assume that the father did not legitimate his children because he was unable to do so. At the present time the father is married. To legitimate the children now he must have the consent of his wife to receive the children into his family. (Civ. Code, § 230.) There is no express finding that his wife is willing to receive the children into the family. On retrial the father must establish that the children will be legitimated as a minimum prerequisite to establishing his fitness for appointment as guardian.