Nadler v. Superior Court In and For Sacramento County
| Decision Date | 30 October 1967 |
| Citation | 63 Cal.Rptr. 352,255 Cal.App.2d 523 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Ellen Doreene NADLER, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SACRAMENTO, Respondent; Walter Robert NADLER, Real Party in Interest. Civ. 11775. |
Clarence S. Brown, Chief Legal Counsel by Clyde M. Blackmon, Counsel, Legal Aid Society of Sacramento County, Sacramento, for plaintiff-appellant, petitioner.
Ernest F. Winters, Sacramento, for real party in interest.
Petition for a writ of mandate brought to compel the Superior Court of Sacramento County to hear further testimony and take additional evidence on the issue of the effect of petitioner's homosexual conduct upon the well-being of petitioner's daughter. The father of the child has appeared herein as the real party in interest.
This proceeding arose out of a divorce action brought by petitioning wife, and subsequent child custody proceedings therein. It is unnecessary to set forth in detail the various legal proceedings taken in this matter, as we are here concerned only with the order of the Sacramento Superior Court, filed October 5, 1967, awarding custody of petitioner's daughter-aged five-to the father and the basis of such order as grounds expressed by the court. The pertinent part of that order reads as follows:
'The court finds from the evidence and stipulations by counsel for the parties hereto that:
'1) The Plaintiff is a homosexual female engaging in sexual acts with other females.
'2) The homosexuality of plaintiff as a matter of law constitutes her not a fit or proper person to have the care custody and control of * * * the minor child of the parties hereto, therefore it will be for the best interest and welfare of said minor child to now place her in the custody of her father, defendant herein.'
The net effect of this order is to remove the child from petitioner for the sole reason that petitioner is a homosexual female and therefore not a proper person to have custody of her daughter As a matter of law. An undenied allegation declares that the trial judge stated in court that he was not exercising his discretion and was required as a matter of law to award custody to the father. Both sides stipulated in the trial court that both the mother and father were able and willing to provide the child with physical care and support.
In a divorce proceeding involving the custody of a child, primary consideration must be given to the welfare of the child. (Sanchez v. Sanchez, 55 Cal.2d 118, 121, 10 Cal.Rptr. 261, 358 P.2d 533; Gudelj v. Gudelj, 41 Cal.2d 202, 208, 259 P.2d 656; see also Civ.Code, § 138, subd. (1).) The good of the child must be regarded as the controlling force in directing its custody. (See Crater v. Crater, 135 Cal. 633, 634, 67 P. 1049.)
It is also the rule that the matter of the custody of a minor is vested in the trial courts, and these courts are given a very broad discretion in determining the best interest of the child....
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