Stewart v. Stewart

SCHAUEB, J.

I dissent. As I have attempted to make clear in my dissents in Roche v. Roche (1944), 25 Cal.2d 141, 144-149 [152 P.2d 999], and Guardianship of Smith (1953), *(Cal.) 255 P.2d 761, 767-771, neither the law, reason, justice, nor socially desirable consequences require that a child’s natural parents be branded in a public and permanent judicial record as “unfit” before custody (always temporary and subject to change, as a matter of law) can be awarded to one not a parent. On the contrary, such a finding will in many cases only result in unnecessary and irreparable harm to both parent and child.

*454It is a matter of common knowledge, proven over and over again in the annals of experience, that often the award of custody of a child to a person other than the natural parent will not only safeguard the child and advance his temporal, moral, and other interests for the time being but will also exercise a sobering and beneficial influence on warring parents who have but temporarily lost perspective on the relative values of some of the closest of human relationships.

Here, from the terms of the agreement of the parents, made at the time of, or preceding the divorce, it is apparent that intelligent and loving consideration, on the part of some one, was at that time given to the welfare of the children, and that the parents and children received the benefit of enlightened legal advice. The best interests of the children apparently were then given paramount effect. This was as it should be, and as our Legislature has enacted. Whether or not one of the parents has merely suffered a change of mind, or whether or not the best interests of the children admit of a change of custody, are questions for the trial court. Findings, unless waived, should specify where the best interests of the two children who are the subject of this proceeding lie, and the custody order should be made accordingly. But the matter should be determined on that basis and not on any theory of Divine — or mercenary — parental right. We should not in any event, in a case such as this, presume a wisdom and a power superior to the Legislature and strike down its direction that the interests of the children, rather than of a parent, be paramount in custody awards. Nor should we gratuitously add to the burdens of these children and their parents a court-made requirement that either the best interests of the children must be disregarded or the parents branded as “unfit.”

A rehearing was granted on May 14, 1953.