IN RE: MARRIAGE OF Suzan E. and Richard A. URBAND.

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Court of Appeal, First District, Division 4, California.

IN RE: MARRIAGE OF Suzan E. and Richard A. URBAND. Suzan E. URBAND, Respondent, v. Richard A. URBAND, Appellant.

Civ. 39717.

Decided: March 08, 1977

Thorne, Clopton, Herz, Stanek & Manchester, Inc. by Richard W. Herz, San Jose, for appellant. Brewer & Kleiman by George W. Brewer, Burlingame, for respondent.

Richard A. Urband appeals from that part of a decree of marital dissolution which awarded to Suzan E. Urband custody of the parties' 9-year-old daughter and 3-year-old son.

Richard contends that the custody award was an abuse of discretion; the argument is that Suzan's religious belief as a member of the Jehovah's Witness sect render her unfit to have custody. Specifically, it is complained that she would not consent to a blood transfusion if some future hypothetical accident or illness created a medical necessity for such treatment, that she would not permit the children to participate in competitive sports, and that she would not permit them to participate conventionally in certain holidays. This contention cannot be sustained. There was uncontradicted evidence that Suzan is a devoted mother. There was no compelling evidence that her religious beliefs and observances would be harmful to the children. The report of the probation officer recommended that the children be placed with her. The determination of child custody rests with the discretion of the trial court; such an exercise of discretion is not to be disturbed on appeal in the absence of a showing of abuse. (Holsinger v. Holsinger (1955) 44 Cal.2d 132, 135, 279 P.2d 961; also see Cory v. Cory (1945) 70 Cal.App.2d 563, 161 P.2d 385.)

The judgment is affirmed.



THE COURT:* FN* Before Caldecott, P.J., Christian, J., and Emerson, J. (assigned).