In re Adoption and Change of Name of a Minor

• Decision Date: 14 September 1937
• Docket Number: 26678.
• Citation: 191 Wash. 452,71 P.2d 385
• Parties: In re ADOPTION and CHANGE OF NAME OF A MINOR.
• Court: Washington Supreme Court

71 P.2d 385

191 Wash. 452

In re ADOPTION and CHANGE OF NAME OF A MINOR.

No. 26678.

Supreme Court of Washington

September 14, 1937

Department 2.

Appeal from Superior Court, Pacific County; J. M. Phillips, Judge.

Fred M Bond, of South Bend, for appellant.

John T Welsh and J. Burke Welsh, both of South Bend, for respondents.

ROBINSON Justice.

Appeal from a judgment and order of a superior court of the State of Washington granting a petition for the adoption and change of name of a minor. Reversed.

The child involved in this proceeding was born out of wedlock in the State of California. The mother, a former resident of Washington, took up her residence in California about a year prior to its birth. Its father had then resided in California for about ten years and has lived there ever since. He had been married about five years Before the child was born, and was then, and still is, living with his lawful wife.

The father paid the doctor and nursing bills incident to childbirth, provided for the necessities of mother and child in various ways, and gave the child his own name in the official birth certificate. When the child was about fifteen months old, the father, the father's wife, and the child's mother entered into an agreement in writing in which it was recited, over their individual signatures, that with the view of promoting the child's welfare, the father had acknowledged it as his own, taken it into his home, with the consent of his wife, and treated it as if it were legitimate, and it was agreed that he, with the consent of his wife, would so continue to acknowledge it, provide for its support, and treat it in all respects as if it were a legitimate child.

The final paragraph of this triparty agreement, omitting the names of the parties thereto, reads as follows: 'It is further agreed and understood that [name of mother] is not relinquishing her rights in said child and that she may visit said child at any and all times and that in the event of the death of [the father], [his wife] will permit the return of said child to [the mother].'

For about a year and a half after the execution of this agreement, the child was in the general custody of its father, although it was sometimes, for a week at a time, in the care of its mother. Without advising the mother of his intention, the father took the child to his former home in an eastern state. After the father and child had been east about three months, the mother followed, her intent being to get possession of the child.

A new agreement was entered into, the father and mother subscribing and swearing to it Before a notary. The substance of this agreement was that the father would return the child to the State of California within two weeks; that the mother would then have it for the next two weeks; and that after that each of them would have it for alternate periods of two weeks, and that neither would remove it from a California county, therein named, without the consent of the other; this arrangement to obtain until the child became of school age, whereupon the father was to have it during school days and the mother on week-ends; during vacations, the father and mother to have it for alternate periods of two weeks. If the child became ill while in the custody of either parent, the other was to have the right of visitation.

Pursuant to this agreement, the child was returned to California, and some months thereafter the mother, without notifying the father, removed it to this state. The petition for adoption was subsequently filed by relatives of the mother, her written consent being attached thereto. The father appeared personally and resisted the granting of the petition.

In contests involving the custody of a child, the air is ordinarily filled with charges and counter charges. In this case, the mother testified that both the father and his wife loved the child and treated it with great kindness. No attack was made upon the father in any way, nor did the father in any way attack or disparage the petitioners or the child's mother. All parties concerned in this matter, in everything they have done or tried to do, seem to have had as their first consideration the welfare of the child. It may be added that the father of the child and the relatives of the mother who sought to adopt it are in about equally modest circumstances. If the case turned upon the question as to what disposition of the matter would best serve the interest of the child, it would be very difficult to make a decision.

Section 230 of the Civil Code of California provides as follows: 'The father of an illegitimate child, 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, thereby adopts it as such; and such child is thereupon deemed for all purposes legitimate from the time of its birth. The foregoing provisions of this chapter do not apply to such an adoption.'

In the article on adoption in volume 1, California Jurisprudence, the author says, at page 455, under the sub-heading found on page 451, 'Adoption by Legitimation': 'Four things are essential under this section for the adoption of an illegitimate child by its father: (1) He shall be its natural father; (2) he shall have publicly acknowledged himself to be the father; (3) he shall have received the child into his family; (4) he shall have otherwise treated it as his legitimate child. * * *'

It is undisputed that the appellant is the child's natural father, and it is clear that he has fully complied with the requirements of section 230 of the Civil Code of California. It is, therefore, urged on his behalf that the child is his 'adopted' child.

Attorney for the respondents calls attention to the fact that section 224 of the California Civil Code (as amended by St.1933, p. 1436) provides, in part, that a legitimate child cannot be adopted without the consent of its parents, if living, nor an illegitimate child without the consent of its mother, and...