Hayward v. Hayward
Hayward v. Hayward
Opinion of the Court
When plaintiff was granted an interlocutory decree of divorce in September, 1951, the parties were given joint custody of their infant son, who was then 17 months old. They agreed, however, that a Mrs. Stevenson, who had been caring for the child since January because of the mother’s ill health due to a cerebral hemorrhage resulting from an aneurysm of the brain, should continue to have his physical custody and care. This arrangement has since continued. In the meantime a final decree has been entered; defendant has remarried and established a home. He now desires the sole custody of his son. After a hearing on an order to show cause the court modified the previous decrees by awarding the physical custody of the child to defendant, with the provision that “Plaintiff shall have possession of the minor child every other weekend from Friday at 6 PM to the following Sunday at 6 PM” and “at other reasonable times.” Plaintiff appeals from this order.
The sole question is: Did the trial court abuse its discretion in so modifying the custody order? The answer is in the negative..
The trial court has a broad discretion when passing on an application for the change of custody of children. (Davis v. Davis, 41 Cal.2d 563 [261 P.2d 729].) It is the welfare of the child that is determinative. (Young v. Young, 117 Cal.App.2d 735, 738 [256 P.2d 1009]; Disney v. Disney, 121 Cal.App.2d 602, 606 [263 P.2d 865].) Since an application for a modification of an award of custody is addressed to the sound legal discretion of the trial court its decision will not be disturbed on appeal in the absence of a clear showing of an abuse of such discretion. (Munson v. Munson, 27 Cal.2d 659, 666 [166 P.2d 268]; Disney v. Disney, supra.)
Considering the foregoing, and the further fact that the judge had the parties before him and thus had an opportunity to evaluate their testimony and determine the weight to which it was entitled, it cannot be said, as a matter of law, that he abused his discretion in modifying the custody order.
The order is affirmed.
Moore, P. J., and McComb, J., concurred.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.