# Guardianship of Casad

> California Court of Appeal · August 16, 1951 · 106 Cal. App. 2d 134

URL: https://www.frixlaw.com/law-library/cases/9600884

## Case

- **Full name:** Guardianship of the Persons and Estates of BRENDA LEE CASAD Et Al., Minors. RALEIGH CASAD, Respondent, v. ELOISE WILSON, Appellant
- **Court:** California Court of Appeal
- **Decided:** August 16, 1951
- **Citations:** 106 Cal. App. 2d 134; 234 P.2d 647; 1951 Cal. App. LEXIS 1723
- **Precedential status:** Published
- **Opinion:** Dissent by Adams
- **Judges:** Deirup, Van Dyke, Adams
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9600884

## Opinion text

ADAMS, P. J.—I dissent.
In my opinion the trial court abused its discretion in making the paternal grandfather guardian of the persons of these little girls and refusing such guardianship to their mother.
The evidence shows that this grandfather was, at the time of the hearing in October, 1949, 64 years of age, and these children were 7 and 9 years old respectively. Their own grandmother, the former wife of Raleigh Casad, was dead, and a second wife, 58 years of age, had taken her place. The' father of the children was also dead. There was no evidence that the mother of these girls was not at that time living a normal and respectable life with her husband and infant son, or that her home was not a fit place for her girls. The finding of unfitness of the mother was based solely upon alleged improper misconduct with her present husband which had begun some time prior to the divorce action instituted by her former husband, Glen Casad, and prior to the execution by the former spouses of an agreement dated February 8, 1945, which was incorporated into the interlocutory decree when a divorce was granted to Glen Casad on February 8, 1945. In said agreement it was recited that there was no community property and it was agreed that the husband should have the care and custody of the two children for 30 days, and that thereafter the wife should have such care and custody provided she had a proper and adequate home properly to care for said children, and that at such times as such home was not provided the husband should have such care and custody and provide such home. No alimony was provided for Mrs. Casad, but the husband agreed to pay to her $75 per month for the care of the children when in the wife’s custody. Mrs. Casad was given nothing but the proceeds of the sale of certain furniture in the sum of $200. The foregoing provisions were incorporated in the divorce decree. *154 Glen Casad was then in the military service, which he had voluntarily joined before being drafted, and his wife and the children had been left by him in the home of the paternal grandparents. Obviously Eloise Casad, who was then in poor health, was without a home of her own into which to take her daughters, and with but $200 and the promise of but $75 per month for the support of the children was confronted with a condition then impossible of fulfillment. It is or should be understandable that she turned to Mr. Wilson for refuge and understanding, and joined him in Arizona. He was in the military service, and it is undenied that he took her to the home of his parents in Missouri who took her in and cared for her and where a son was born to her. And while she admitted that thereafter she and Wilson lived together as husband and wife, there is no evidence of misconduct other than the fact that their cohabitation was without the sanction of a marriage ceremony. There is no evidence that her conduct was in any sense promiscuous, or that the conduct of that couple was other than that of a legally married couple, or that there was more than a continuation of an intimacy begun some time prior to the agreement between Casad and his wife, and while Casad was absent from his family; and she testified that she told her husband of her love for Wilson and a desire for a divorce before the suit for divorce was filed. Under the law of this state prior to 1895 the conduct of the Wilsons, at least after the divorce became final, would have constituted a common law marriage, recognized as valid; and such marriages are still recognized by law in some states. (See Civ. Code § 55 as originally adopted. Also see Sharon v. Sharon, 75 Cal. 1 [ 16 P. 345 ]; White v. White, 82 Cal. 427 [ 23 P. 276 , 7 L.R.A. 799 ]; Estate of Richards, 133 Cal. 524, 527 [ 65 P. 1034 ]; 16 Cal.Jur. 914-917, § 11; 55 C.J.S., p. 816, et seq.)
Shortly after the death of Glen Casad in July, 1949, Wilson and Mrs. Casad were married under the auspices of the Catholic Church of which they are members. They had already established a modest home in Visalia, California, where Wilson was employed at a salary of $300 per month. On July 20, 1949, Raleigh Casad filed his petition for guardianship of the persons and estate of the two children, the estate consisting of $3,000, the proceeds of a life insurance policy left by Glen Casad. Mrs. Wilson then filed a similar petition seeking guardianship. On the hearing of the two petitions no showing whatever was made as to any present *155 unfitness of Mrs. Wilson to have the custody of her daughters. On the contrary there was testimony by three persons who knew her and Mr. Wilson in Visalia, one of whom was a next door neighbor, to the effect that they had known Mrs. Wilson for over a year, had visited her home frequently, had had opportunities to observe her fitness to keep a home and her third child; that she was an excellent housekeeper and a good and kind mother; and that she had overcome any mistakes she may have made in her past life.
It is well established that as between a parent and a grandparent the latter is a stranger to an action involving custody (Roche v. Roche, 25 Cal.2d 141, 144 [ 152 P.2d 999 ]; Robertson v. Robertson, 72 Cal.App.2d 129, 133 [ 164 P.2d 52 ]; Becker v. Becker, 94 Cal.App.2d 830, 833 [ 211 P.2d 598 ]), and as between him and the mother of these children her rights are paramount. (In re White, 54 Cal.App.2d 637 [ 129 P.2d 706 ]; Roche v. Roche, supra; Stever v. Stever, 6 Cal.2d 166, 170 [ 56 P.2d 1229 ]; Newby v. Newby, 55 Cal.App. 114 [ 202 P. 891 ]; Robertson v. Robertson, supra, at page 132.) Even as between husband and wife in actions for divorce, while neither is of right entitled to the custody of minor children, as provided by Civil Code, section 138, other things being equal, if a child is of tender years it should be given to the mother. This has often been held to be of special importance if the child is a girl. (Washburn v. Washburn, 49 Cal.App.2d 581, 587 [ 122 P.2d 96 ]; Juri v. Juri, 69 Cal.App.2d 773, 779 [ 160 P.2d 73 ]; Estate of Lindner, 13 Cal.App. 208, 212 [ 109 P. 101 ]; Bemis v. Bmis, 89 Cal.App.2d 80, 83 [ 200 P.2d 84 ]; Noon v. Noon, 84 Cal.App.2d 374, 379 [ 191 P.2d 35 ].)
It is undenied that nothing has been shown in this proceeding which reflects unfavorably upon the recent conduct of Mrs. Wilson, or is incompatible with a conclusion that if she once erred, she has rehabilitated herself. In Prouty v. Prouty, 16 Cal.2d 190, 194 [ 105 P.2d 295 ], the court said: “The question as to whether a parent is a fit or proper person to have the custody of a minor child refers, however, to his or her fitness at the time of the hearing and is not necessarily controlled by conduct many years prior thereto. (Ott v. Ott, 127 Cal.App. 322 [ 15 P.2d 896 ]; In re Green, 192 Cal. 714 [ 221 P. 903 ].) Evidence of prior acts of misconduct may be admissible if it can be said to have a direct bearing upon the issue of present unfitness, but such evidence should be limited to this issue alone.” (Italics added.)
*156 The rule that present fitness and not former misconduct should control in custody cases as stated in 67 Corpus Juris Secundum 662, is: “A parent who is, at the time when the question arises, a suitable and competent person to have the custody of the child will not be refused such custody because at some time in the past his conduct, habits, health, or circumstances were such that he would not then have been a proper custodian.” Also it is said at page 661: “A parent may be denied the custody of a child because of bad moral character or reputation. The immorality, however, must be of so gross a character that the morals of the child would be seriously endangered, and proof of a lapse from moral standards or of one immoral act does not conclude the parent’s right.” Other California cases holding that fitness of a parent at the time of the hearing is the proper test to apply in cases such as this are Guardianship of McCoy, 46 Cal.App.2d 494 [ 116 P.2d 103 ]; Guardianship of Jones, 86 Cal.App.2d 35, 37 [ 194 P.2d 141 ]; In re Green, 192 Cal. 714, 721 [ 221 P. 903 ].
Cases from other jurisdictions follow the same rule. In Cooke v. Cooke, 67 Utah 371 [ 248 P. 83 ], the court said at page 102: “In this country the general rule is that a spouse, though found or adjudged guilty of adultery, will not, for . such reason, necessarily be deprived of the care and custody of his or her children (Haskell v. Haskell, 152 Mass. 16 [ 24 N.E. 859 ]; Ex parte Lincoln, 128 La. 278 [ 54 So. 818 ]; Brogna v. Brogna, 67 Wash. 687 [ 122 P. 1 ]; Richardson v. Richardson, 36 Wash. 272 [ 78 P. 920 ]), and especially where it is shown that the adulterous relation had ceased, or would not be repeated, or the morals of the child or children not affected thereby. And such is the effect of our statute, under which, different from the laws of Canada, the mother, in case of separation of husband and wife, instead of the father, is given the paramount right to the care, custody, and control of minor children.” (Italics by that court.) In Vanover v. Johnson, 201 Ky. 302 [ 256 S.W. 422 ], it was held that the mother of a girl child, who had been divorced and remarried, should not be denied custody as against its paternal grandparents, because she had committed adultery during the first' marriage, where her conduct showed complete reformation. In Woolston v. Woolston, 135 Misc. 320 [ 239 N.Y.S. 185 ], it was held that the conduct of a mother in living with another as his wife after separating from the husband was not sufficient ground to deny her custody of children after the death *157 of their father. And in Geismar v. Geismar, 54 N.Y.S.2d 747 , infidelities of a mother, which were said not to be notorious or in the presence of the children, were held insufficient to justify her deprivation of the custody of her children. Also see Commonwealth ex rel. Martocello v. Martocello, 148 Pa. Super. 562 [25 A.2d 855, 856]; Commonwealth ex rel. Bock v. Bock, 59 Pa.Super. 159 [ 48 A.2d 133 ]. In the latter case the trial court refused to make a finding that the mother was guilty of adultery, saying that it did not seem proper in the interests of the child whose custody was in controversy. But it said that a conviction of adultery would not, of itself, render her unfit to have custody of her child.
While the grandfather may be able to give to these infants greater material advantages, this court said in In re White, supra, at page 640, that: “The right of a parent to the care and custody of a child cannot be taken away merely because the court may believe that some third person can give the child better care and greater protection. One of the natural rights incident to parenthood, a right supported by law and sound public policy, is the right to the care and custody of a minor child, and this right can only be forfeited by a parent upon proof that the parent is unfit to have such care and custody. ’ ’ That language was quoted and approved in Roche v. Roche, supra, at page 144. Also, see, Robertson v. Robertson, supra, at page 133.
While in the proceeding before us the court did find that Mrs. Wilson is not a fit and proper person to have custody and control of her little daughters, that conclusion was based upon testimony of past events most of which dealt with events prior to the interlocutory divorce decree and the agreement of the parties in February, 1945, which were known to the husband and were, doubtless, made known to the court at that time. The evidence relied upon by petitioner Raleigh Gasad shows that intimacies between the Wilsons began in 1944; and, as to the finding that when Mrs. Wilson had the children with her in 1944 she failed to care for them properly, .this is based solely upon the testimony of Mr. Casad that when he called at her home one morning he found the children around in their night clothes, and their mother still in bed; and his further testimony that one of the children had eczema, which he attributed to lack of proper diet, though there was no medical testimony to support it. But be that as it may, it did not deter either Glen Casad in his agreement or the court in the divorce decree, from awarding the children to *158 Mrs. Casad, under the conditions hereinbefore stated. There being no evidence of present unfitness of Mrs. Wilson except such as may have been inferred from her conduct in living with Wilson while unmarried to him, the trial court must have based its finding of unfitness upon conduct some five years prior thereto. In my opinion such evidence should not have been admitted, particularly that of conduct prior to the interlocutory divorce decree. Nor do I consider that it is or can be for the best interests of these little girls that they be deprived of the love and companionship of their young mother and that the character of their mother forever be stamped as immoral. The puritanical notion that a young woman whose conduct does not conform with the mandates of the “double standard” of morals should forever after bear the scarlet letter is outmoded. And to paraphrase the language used in People v. Mangum, 31 Cal.App.2d 374, 382 [ 88 P.2d 207 ], it must be conceded that habits and social customs have altered since the origin of the rule mentioned, so that, in many respects, its application would be a grotesque anachronism. A more generous attitude toward the children as well as their mother would be to forget the past, and restore, as far as possible, the normal relationship between parent and children. It is unnatural that these little girls be raised by and dependent upon an aging grandfather, particularly since, with inexorability of time, he will become less and less capable of fulfilling the duties of mother and father to them; and in the event of his demise before these children reach their majority they will be left strangers to and alienated from their mother and dependent upon the support and care of strangers.
As for the assertions in the opinion of Judge Deirup that Mrs. Wilson “deserted” her children (he concedes that she did not abandon them) and that “she threw her children away once in pursuit of romance,” in my opinion they are unjustified by the evidence in the case, as is the statement that “Perhaps she would like to get the insurance money; and that the little girls might be useful to her in- taking care of her little boy.” The evidence shows without contradiction that at the time Mrs. Wilson left California and went to Arizona, these children were, by the order of the divorce court, in the custody of their father, and that she was obviously unable to secure a home for herself into which to take them; that the attitude of the Casads toward her was unfriendly; and that shortly thereafter the legal custody of the little girls was given to their father by another decree of the divorce court. Under *159 these circumstances she cannot be said to have deserted them because she did not remain in California, and any assertion that she did not thereafter evince interest in them is contradicted by evidence that from time to time in 1945, 1946, 1947, 1948 and 1949 she sent them gifts and remembrances, some of which their custodians refused to accept and did not acknowledge. She was in no condition, either physically or financially, to do much in that respect, and under no legal obligation to contribute to their support. And when she returned to California in 1948, for the asserted purpose of seeing her children, she was met with objections from their father, and, after his death, from their grandfather. And regarding the aforesaid reference to Mrs. Wilson’s desire to “get the insurance money,” she stated that she would prefer that the court should appoint a bank or trust company to act as guardian of the children’s estate and that she was interested in the children alone. But even if she were guardian of same, the children’s money would not be hers to expend, but would be subject to the court’s supervision. And, furthermore, she did not seek guardianship until after Ealeigh Casad had filed his petition asking for appointment. And any assertion that perhaps Mrs. Wilson wanted her girls to take care of her little boy is purely fanciful and gratuitous.
Finally, as was said by the court in Geismar v. Geismar, supra, at pages 755-756: “Above all, the question here, as already observed, is not one of abstract morals, but rather whether the mother’s indiscretions have been such as to affect her right to custody; whether the welfare of the children has been or will be harmed thereby. The law is not so vengeful as to punish the children through their mother.
‘ ‘ Since we are dealing with humans and not angels, we must take human frailties into account. Granted that the mother is not perfect, still, imperfection is not unfitness. And if we rejected anything, short of flawlessness, our quest would have to go beyond and higher than this earth. . . .
“. . . This is not a divorce action, calling for a branding with the scarlet letter. For the Court to assume a sanctimonious or puritanical attitude would not be realistic; it would not meet the practicalities here presented. A system of justice not seasoned with compassion and understanding would be unjust. A blind and merciless easting of the first stone is not the mission of the law. ’ ’

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9600884. Public record. Not legal advice.