Application of D. L. in behalf of R. J. M., a minor, for habeas corpus. v. <<

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Court of Appeal, Third District, California.

Application of D. L. in behalf of R. J. M., a minor, for habeas corpus.

Cr. 7583.

Decided: October 30, 1974

Roberta Ranstrom, Legal Aid Society of Sacramento, Sacramento, for petitioner. Carolyn L. Kemmler, Sacramento, for respondent.

Petitioner D. L., formerly D. M., is the mother of a four year old boy, R. J. M., and seeks by habeas corpus petition to have R. J. M. delivered to her by the respondent J. H., R. J. M.'s natural father (hereinafter petitioner will be referred to as ‘mother’ and respondent as ‘father’). By her petition the mother alleges that R. J. M. is illegitimate; that he resided with her until October 31, 1973, at which time he was forcibly and wrongfully restrained and detained by the father against her wishes; and that she is entitled to exclusive custody and control of R. J. M.

Prior to seeking this writ, the mother filed a like petition in the Superior Court of the County of Sacramento. A writ was issued on November 12, 1973, but after hearing was discharged on January 28, 1974; in the same proceeding custody of R. J. M. was awarded to the father after a determination that he had earlier legitimated the child as authorized and contemplated by Civil Code section 2301 and that such award was in the child's best interests. Besides contesting the mother's claim of right to custody, the father has pleaded that the order of the superior court is res judicata as to the issues tendered, tried and decided by it; that the mother is estopped from again litigating the same issues to this court; and that the ultimate facts required by section 230 to be proven are supported by substantial evidence.

The mother contends:

1. The order of the superior court is not res judicata since its decision constituted a question of law rather than of fact.

2. There was no legitimation under section 2302 since she never consented to it.

I

Where habeas corpus proceedings involving child custody have been prosecuted in the superior court, its order is res judicata as to issues of fact actually litigated and decided, and the unsuccessful petitioner is estopped in the absence of a change in circumstances from again trying those issues in the Court of Appeal upon petition for a writ of habeas corpus. (In re Croze (1956) 145 Cal.App.2d 492, 494, 302 P.2d 595, and citations therein.) However, such an order does not bar further proceedings for the custody of the child. (Id. at p. 495, 302 P.2d 595.) Errors of law may be reviewed in a later habeas corpus proceeding in the Appellate Court. (In re Livingston (1930) 108 Cal.App. 716, 292 P. 285.) And factual determinations of the trial court must of course be supported by substantial evidence. (Green Trees etc. v. Palm Springs, etc. (1967) 66 Cal.2d 782, 59 Cal.Rptr. 141, 427 P.2d 805; Foreman & Clark v. Fallon (1971) 3 Cal.3d 875, 92 Cal.Rptr. 162, 479 P.2d 362.)

Section 200 provides: ‘The mother of an illegitimate unmarried minor is entitled to its custody, services, and earnings.’ Where the father of an illegitimate child legitimates it pursuant to section 230, it becomes ‘the legitimate child of both of its natural parents, and . . . the rights of the child and of the parents thenceforth are the same as they would be had the child been born of the marriage of its natural parents. To this extent, then, the rights of the natural mother as set forth in section 200 of the Civil Code are modified for the benefit of the child, and neither of such parents has a superior right to its custody, services or earnings.’ (In re Navarro (1946) 77 Cal.App.2d 500, 505, 175 P.2d 896, 899.)

In order for the trial court to award custody of R. J. M. to his father, it was essential that it first determine, as it did, that a section 230 legitimation had occurred. Under the cited authorities, to the extent that factual findings were made, they are binding upon this court (subject to the substantial evidence requirement). Thus the determination that of the two parents, the best interests of the child would be served by custody of the father will not be disturbed, there being substantial evidence to support it. It is however in the area of the section 230 requirement that the mother claims error of law, not fact; and this is well within our appellate function. We thus proceed to review the trial court's ruling, limiting our inquiry to matters of law and sufficiency of the evidence.

II

The pertinent evidence on the issue of legitimation, viewed most favorably to the father, is as follows: R. J. M. was born on July 18, 1969. The father and mother were not then married, nor have they since been married to each other. Although there were early denials of paternity by the father, he acknowledged paternity prior to birth of the child and has ever since continued to acknowledge it.

At the time of birth the father lived with his mother (the child's paternal grandmother) in a home owned by him. The grandmother (not the father) invited the mother to stay with them in that home for a short while after release from the hospital; the mother accepted the invitation, and stayed there with the child for two weeks to one month, returning to her own home after that time. Thereafter the father visited the child at the mother's home often and the grandmother would pick up the child and take it to the father's home for visitation. When the child was two years old, the father remarried and thereafter his wife would pick up the child regularly for weekend visits at the home of the father and his wife. The child was baptized in a church ceremony at about four months of age, the godparents being the father's brother and sister.

The mother was never paid any child support payments by the father, despite his financial ability to do so. She supported the child by welfare payments and in order to protect the father from a support obligation, gave fictitious information to the District Attorney regarding the child's paternity; this she told the father at the time.

The mother continued to have custody of the child, with the father exercising liberal visitation rights, until October 31, 1973 when the father picked up the child for a visit and refused to return him. The habeas corpus proceeding was then filed in the trial court.

As clearly appears from the foregoing, at no time from the birth of the child until October 31, 1973, a period of over four years, did the mother relinquish custody to the father or to anyone else. She at all times retained custody and control of the child and the father's access was the result of liberal visitation rights voluntarily accorded to him by the mother. Even during the short period after birth when the child and mother stayed at the father's house, there was no relinquishment of custody; the father was simply willing to assist the mother and child with post natal care to both for a short period; and the mother accepted.

Although no formal findings were made, the trial judge gave the reasons for his ruling as follows: ‘Well, on the basis of the evidence which has been presented to me, I find the fact that the father of the child had heretofore, . . . really even before he was married, publicly acknowledged the child as his own, publicly received the child into his family as his own, . . . not only with the consent of his mother, the child's grandmother, but after he got married, with the consent of his wife, and that he has otherwise treated the child as legitimate, . . . I find the facts to be that the father has long prior to the filing of this proceeding, legitimated the child as authorized and contemplated by Civil Code section 230.’

For a legitimation to occur under Civil Code section 230, five elements are necessary. (1) The illegitimacy of the child; (2) paternity; (3) public acknowledgment of paternity; (4) reception into the father's family; and (5) treatment as legitimate. The mother does not challenge the existence of the first three elements, recognizing that the child was undisputedly illegitimate, that J. H. is in fact the father of the child, and that he publicly acknowledged the child as his own. The mother quarrels with the sufficiency of the evidence to establish the fourth and fifth elements, claiming as to the fifth element that a father does not treat a child as legitimate if he does not in fact support it, and as to the fourth element that there can be no receipt into the father's family without the mother's consent.

The failure of the father to financially support the child is a substantial indication that he did not treat the child as his own legitimate child. Indeed it is quite basic to the concept of treating a child as legitimate that the father be willing to support it. When he does not do at least this, it is hard for him to claim that he satisfied this element. And his position in this regard is not improved by the argument that he did feed, clothe and house (i. e. ‘support’) the child while it was physically with him during visitation.

On the other hand, satisfaction vel non of the fifth element is essentially a question to be resolved by the trier of fact, and there will be no interference by this court unless there is insufficient evidence in the record to support it. (Darwin v. Ganger (1959) 174 Cal.App.2d 63, 73, 344 P.2d 353.) The facts of repeated recognition of paternity and public acknowledgment thereof, of frequently taking the child into his home and physically caring for it, of the active participation of his wife and family in the recognition of paternity, of the frequent exercise of visitation rights, and many other facts testified to in the record but not necessarily stated here, are sufficient in our view to override the adverse factor of lack of support and supply evidence to sustain the trial court's finding of treatment of the child as legitimate.

The other contention is far more difficult to resolve. The mother claims that she never consented to the legitimation of the child and that the element of taking the child into the father's family cannot be supplied by weekend and vacation visits without a change of custody.

There is a line of cases which tends to support the mother's contention regarding her consent to legitimation. (Adoption of Irby (1964) 226 Cal.App.2d 238, 37 Cal.Rptr. 879; Guardianship of Truschke (1965) 237 Cal.App.2d 75, 46 Cal.Rptr. 601; Adoption of Pierce (1971) 15 Cal.App.3d 244, 93 Cal.Rptr. 171, and Cheryl Lynn v. Superior Court (1974) 41 Cal.App.3d 273, 115 Cal.Rptr. 849.)

In Irby and Truschke the father of the child never was able to satisfy the requirement of taking the child into his home, due to the mother's refusal to permit this. Both cases held that since the mother refused to permit the father to take the child into his home, one requirement of Civil Code section 230 was not met so there was no legitimation. In both of those cases the evidence clearly showed not only that the mother did not ever surrender custody to the father, but also that the father never even exercised visitation rights. In the Cheryl Lynn case, the child had not even yet been born, and the court held that the mother had an absolute right to place the child for adoption as soon as it was born. Adoption of Pierce is the only case in which there were in fact visitation rights accorded to the father, but there the court held that they were not sufficient to establish the necessary element of receiving the child into the father's family. The court used language suggesting that it is necessary for the mother to ‘consent to legitimation’ in order for that requirement to be met.

Actually, the consent of the mother as such is not required. It is not made an element of Civil Code section 230 and indeed cannot be. For example, if as frequently happens the natural mother were to die or to abandon the child and disappear so that her consent would be literally unavailable, certainly it cannot be said that such lack of consent could prevent the father from complying with the requirements of section 230 and accomplishing legitimation.

What the foregoing four cases actually hold is that the mother may by her lack of consent indirectly prevent legitimation. Under section 200, she has the absolute right to the custody of the minor. Section 200 contains no exceptions or limitations and its language is perfectly clear.3 It gives no rights to the natural father of the illegitimate child. Although Stanley v. Illinois (1972), 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 suggests that possibly a natural father of an illegitimate child would be entitled to notice of any proceeding involving change in legal custody of the child, the Cheryl Lynn case properly holds that this would not detract from the mother's custodial rights, nor from her right to alone determine whether the child should be adopted pursuant to section 224.

Thus by refusing to permit the father to physically have the illegitimate child, the mother can effectively prevent the accomplishment of one condition of section 230, that of taking the child into the father's family. Without her consent, this can't be done; and in that sense it can be said that her consent is necessary for legitimation.

Our case thus narrows down to the question of whether in fact the fourth condition of section 230, receipt of the child into the father's family, can be accomplished on the basis of visitation rights voluntarily accorded by the mother to the father. Literally the child was physically taken into the father's home, both during weekend and overnight visits and also when the mother was first released from the hospital. Is this a receipt into the family within the meaning of section 230? Adoption of Pierce, supra, dealt with this question. There the issue of paternity first arose in litigation between the father and the mother to establish paternity and support. Pursuant to stipulation, a temporary support order was made giving the father limited visitation rights. In holding that the father had not complied with the fourth condition, the court said (15 Cal.App.3d at p. 251, 93 Cal.Rptr. at p. 175): ‘The very fact that the mother, or the agent of the mother (the nurse) had to be present at all times withe the child in whatever surroundings that Jerry (the father) sought to provide indisputably establishes that there was no relinquishment of complete guardianship control by the mother. Thus, Jerry at no time could take the child into his family circle within the meaning of Civil Code section 230.’ (Emphasis added—footnote omitted). The Pierce court thus recognized a rule which requires that the father take custody of the child in order to comply with the fourth element of section 230; yet at the same time the court emphasized the curtailment of visitation rights as bearing on the question. Thus Pierce is distinguishable on its facts, because here the father exercized liberal rights of visitation voluntarily accorded to him by the mother. We hold that even under these circumstances the fourth element was not complied with for the following reasons:

The language of section 230 suggests something more than mere visitation. The words are ‘ . . . receiving it (the child) as such (his own) . . . into his family. . . .’ To received means ‘to take or get (something given, offered, sent, etc.); acquire or accept.’ See Webster's New World Dictionary, Second College Edition. The definition suggests permanency as distinguished from transience.

Furthermore section 230, when complied with, takes substantial rights and duties from the mother by derogating her rights and duties under section 200. Obviously section 200 is intended to provide for the welfare of the child and for its orderly, non-turbulent rearing; and does so by placing all of its custodial care with the mother, along with the accompanying responsibilities. When section 230 provides for a method of giving to the father the same custodial rights as the mother (In re Navarro, supra; Guardianship of Castellanos (1961) 198 Cal.App.2d 190, 17 Cal.Rptr. 905), it would seem that something substantial should be required to effect the change, something with a degree of solemnity and finality.4 Mere visitation does not appear to be sufficient. It is our view that to ‘receive’ the child into his family, the father must do something to alter the status of the child rather than to exercise a temporary privilege.

The construction is strengthened by considerations of public policy. Adoptions of children, including illegitimate children, are favored by the law.5 ‘The main purpose of such (adoption) statutes is the promotion of the welfare of children ‘by the legal recognition and regulation of the consummation of the closest conceivable counterpart of the relationship of parent and child.’' (Department of Social Welfare v. Superior Court (1969) 1 Cal.3d 1, 6, 81 Cal.Rptr. 345, 347, 459 P.2d 897, 899.) It would be inconsistent with such public policy to allow natural fathers of illegitimate children a priori to interfere with their adoption. The mother's right to alone consent to an adoption, either by her later husband and stepfather or by qualified third persons, should be grudgingly interfered with. Adoption of Irby, supra, 226 Cal.App.2d at pages 241–242, 37 Cal.Rptr. at p. 882, comments as follows: ‘A rule which would give the father of an illegitimate child the right of ‘first refusal’ of the child would create the possibility of grave abuses in adoption proceedings. The market for babies is a seller's market. See Moppets on the Market: The Problem of Unregulated Adoptions, 59 Yale Law Journal, 715. If the consents of illegitimates' fathers were required to complete adoption proceedings, the work of social workers and others who must secure the necessary consents would be immeasurably increased. In many cases, the fathers could not be found and the proceedings would be delayed. Any relaxation of the requirements of Civil Code, § 230, would open the door to fraud and coercion.'

Moreover, as hereinabove stated, under section 200, the mother has the absolute right to custody of an illegitimate child and the father has no rights of visitation. But the mother may voluntarily accord visitation to the natural father. Where she chooses to do this, every sound consideration of public policy suggests that the practice should be encouraged, for in that circumstance, the child's life is much enriched by its association with its father. The public policy which favors adoption of the illegitimate child and its consequent placement with two parents instead of one is no longer involved, since out premise presupposes that in this situation the mother retains custody and the child remains illegitimate.

The construction advocated by the father here would bring about the circumstance that whenever a mother accords visitation rights to the father (including presumably the right to take the child to his home), she loses the sole right of custody over the child, and also the sole right of consent to its adoption. Put another way, every father of an illegitimate child who is allowed by the mother to visit that child, thereby acquires at once the right to veto any adoption and the equal right to custody of that child. The net result would be that mothers would be well advised (and good lawyers would so advise them) to prohibit all visitation of illegitimate children by their fathers. This the law should not promote.

We hold that the father of an illegitimate child cannot comply with the section 230 requirement of receiving the child into his family on the basis of visitation rights voluntarily accorded to him by the custodial mother, regardless of how liberal or extensive. In order to satisfy the requirement, the father must have custody6 in derogation of the mother's custodial rights under section 200. This can be done only if she voluntarily surrenders custody or waives her custodial rights by failure to assume or retain custody, thus being in no position to consent or object.

So construing section 230, the superior court's ruling must be vacated and custody of this child restored to the mother. There has never been a legitimation under section 230.

The father may argue that since October 31, 1973, the child has as a matter of fact been in his full custody, notwithstanding the mother's lack of consent. However, this came about not only over the mother's express disapproval but also as a result of the father's violation of the legal rights of the mother and the child. He took the child for a ‘visit’ and refused to return it. As hereinabove noted, upon legitimation by the father the mother's exclusive right to the child's custody terminates. Were we to allow this contention, a father could use deceit or force to accomplish legitimation and thereby deprive the mother of such right. The father's conduct here was offensive to the public policy favoring changes of custody by acquiescence or through due process of law; not by an intolerable species of self-help. This is why the rule we have here enunciated requires for compliance with the fourth condition of legitimation either the mother's voluntary surrender of custody to the father or a waiver of her custodial rights. The physical custody of R. J. M. since October 31, 1973, has not been pursuant to either condition.

A writ of habeas corpus will issue ordering the father to deliver custody of R. J. M. to the mother; an auxiliary writ of prohibition will issue restraining the superior court from enforcing its writ.

I respectfully dissent. The trial court on conflicting evidence found a legitimation, under Civil Code section 230, by the father of an illegitimate child. The majority conclude that this was error. While conceding that four of the five requirements expressed in section 230 have been met, the majority, focusing on the fifth element, determine that the father's conduct does not meet the requirement of the father's ‘receiving’ the child into his family. I do not agree.

It is well established, as the majority note, that ‘[w]here habeas corpus proceedings have been prosecuted in the superior court and that court has made findings of fact, its order is res judicata of the issues tendered, tried, and decided by the superior court; and the petitioner, if unsuccessful in the superior court, is estopped in the absence of a change in circumstances from again trying those issues upon a petition to the District Court of Appeal for a writ of habeas corpus.’ (In re Croze (1956) 145 Cal.App.2d 492, 494, 302 P.2d 595, 596.) An unsuccessful litigant in a habeas corpus proceeding before a trial court faces a partially closed door in similar proceedings before an appellate court. Errors of law may be explored but factual determinations of the trial court supported by substantial evidence are beyond the purview of appellate scrutiny. There is authority that whether a father has legitimated and illegitimate child constitutes a question of fact for the trial court whose determination is upheld if supported by substantial evidence. (Guardianship of Truschke (1965) 237 Cal.App.2d 75, 78, 46 Cal.Rptr. 601.) I find substantial evidence favoring the trial court's finding of legitimation.

My disagreement with the majority goes further. The majority suggest that the father never ‘received’ the child in his home because, roughly paraphrased, there occurred no substantial, permanent, solemn, or final alteration of the child's ‘status.’ In order to satisfy the requirement of reception of the child into the father's home, in the language of the majority, the father must have ‘custody in derogation of the mother's custodial rights under section 200. This can be done only if she voluntarily surrenders custody or waives her custodial rights by failure to assume or retain custody . . ..’ The majority would engraft on section 230 the requirement that in addition to receiving the child into the father's family there must be a permanent, substantial change of status giving to the father rights of ‘custody’ which, previously vested in the mother, she must voluntarily surrender or waive.

I do not find such language in section 230 which requires only that to legitimate an illegitimate child the father must (1) publicly acknowledge the child as his own, (2) receive the child as his own into his family with his wife's consent, and (3) otherwise treat the child as if it was legitimate. The majority does not read section 230 so simply and finds support for their position in Adoption of Irby (1964), 226 Cal.App.2d 238, 37 Cal.Rptr. 879; Guardianship of Truschke, supra, 237 Cal.App.2d 75, 46 Cal.Rptr. 601; Adoption of Pierce (1971), 15 Cal.App.3d 244, 93 Cal.Rptr. 171; or Cheryl Lynn H. v. Superior Court (1974), 41 Cal.App.3d 273, 115 Cal.Rptr. 849. These cases, in my view, are sufficiently distinguishable on their facts to make the holdings neither controlling nor persuasive. Irby, involving a third party adoption of an illegitimate child, was characterized by the open continued objection of the mother to the father's taking of the child into his home. Under the circumstances no legitimation having occurred, the father's consent to adoption was found unnecessary. In Truschke the father never physically received the child into his home and saw the child only once. In Cheryl Lynn H. two minor unmarried parents of an unborn child disagreed on the mother's desire to place the child for adoption. The parties stipulated that the father had not legitimated the child. The appellate court held that the mother may preclude legitimation where she refuses to relinquish custody of the child to the father, citing Irby and Pierce. In Pierce, like Irby, a natural father of an illegitimate child was not permitted to object to a third party adoption. The court found, among other things, that the mother's insistence on being present at all times during the father's visitation and her consistent opposition to any visitation negated any inferences of the mother's consent to legitimation.

The foregoing cases illustrate the truism that factual patterns vary and the application of section 230, notwithstanding generalizations of abstract principles, must be decided on a case by case basis.

Assuming the necessity, however, of the mother's ‘consent’ to a change in ‘status' of the minor deriving from the father's relationship with an illegitimate minor as urged by the majority, such consent need not be express, may surely be implied, and, I suggest from a fair reading of the factual record, should be implied in the case at bench. Testimony before the trial court revealed: the father from birth acknowledged the child as his; he drove the mother home from the hospital after delivery, and she remained at his home under his mother's care for two weeks thereafter; he personally cared for the physical needs of the child immediately after birth; he had the child with him for weekends before his marriage; after his marriage the father and his wife continued taking the child into his home at least once per week for approximately two years; the brother and sister of the father were the child's godparents at the child's baptism; the child was with the father ‘three to four days at a time’ and the child was taken by the father and his wife on trips and while bowling and golfing; on at least two occasions father took the child into his home for a ‘long period of time’ when the mother was hospitalized; on an emergency occasion when, at night, the child was injured the father responded and remained with the child at the hospital while he received treatment; in addition to the foregoing, on occasion and at the mother's request father's mother kept the child in the father's home; the father arranged for some of the child's medical attention; all of the foregoing was with the mother's full knowledge and presumed acquiescence. The natural mother knew that the father's acknowledgment of the child was open, public, continuous from birth, and under circumstances prolonged and varied.

On the foregoing record, which I have only briefly summarized, the trial court found that more than ‘liberal visitation’ was involved. Rather, the court found as a fact that the conduct of the mother, father, paternal grandmother and father's wife confirmed that the father had ‘received the child into his family’ as his own with the knowledge and consent of the mother. On the factual record before it I conclude that the court was fully justified in so holding, and I would not disturb its judgment.

Section 230 is to be construed liberally. (Estate of Lund (1945) 26 Cal.2d 472, 488, 159 P.2d 643; Hurst v. Hurst (1964) 227 Cal.App.2d 859, 870, 39 Cal.Rptr. 162 (hg. den.).) In Hurst father rented an apartment in favor of mother, child and himself and thereafter for approximately three months supported the mother and child. Father was not physically present in the apartment. The court held that, notwithstanding his physical absence, the apartment was his ‘home’ and the mother and child were his ‘family’ within the meaning of section 230. I think the circumstances before us in terms of living arrangement and duration constitute a stronger basis for finding legitimation than those in Hurst.

It is reasonable to conclude that the mother consented to the child being ‘received’ into the father's home as an acknowledged legitimate son in every real or meaningful sense. The conduct of the parties most intimately concerned points unerringly to the father's public acknowledgment of the child as his legitimate son and the mother's continued acquiescence therein. To require more, in my view, is to elevate semantics over reality.

The majority invoke considerations of public policy and raise the specter of fathers of illegitimate children asserting the necessity of the natural father's consent, thereby disrupting established adoption procedures and concluding that ‘adoptions of children, including illegitimate children, are favored by the law.’ While accepting the validity of the foregoing principle applicable to adoption proceedings wherein trial courts establish new parental relationships, I suggest that a policy of equal if not greater force favors legitimation (Estate of Abate (1958) 166 Cal.App.2d 282, 291, 333 P.2d 200), constituting as it does no ‘counterpart’ to the natural parental relationship but the assertion and recognition of a relationship to the child by those whose ties are of the blood.

I would find on the record before the trial court that all of the conditions of section 230 had been met and would affirm the trial court's judgment.

FOOTNOTES

1.  Civil Code section 230 states in pertinent part: ‘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.’

2.  All statutory references are to the Civil Code.

3.  Contrary to counsel's argument that Strong v. Owens (1949), 91 Cal.App.2d 336, 205 P.2d 48 stands for the proposition that fathers of illegitimate children have rights of visitation, that is not the law. Strong v. Owens did not so hold, but rather held what we know to be indisputable, that once a father has legitimated an otherwise illegitimate child, thereafter the rights of both parties to custody of the child are equal. Thus since the court there awarded custody of the legitimated child to the mother, it was proper to allow reasonable rights of visitation to the father. Had the legitimation not occurred, the father would have no rights, and to give him rights of visitation would be to fly squarely into the teeth of the very clear language of section 200. Neither the Strong case not any other case to our knowledge has so held. On the contrary Cheryl Lynn, supra, 41 Cal.App.3d at page 277, 155 Cal.Rptr. 849 and Guardianship of Truschke, supra, 237 Cal.App.2d at page 80, 46 Cal.Rptr. 601, hold otherwise.

4.  This is a good reason for the rule that section 230 is to be strictly construed. Estate of DeLaveaga (1904), 142 Cal. 158, 75 P. 790; Adoption of Irby, supra; Guardianship of Truschke, supra.

5.  This is yet another reason for the rule that section 230 is to be strictly construed. See footnote 4, supra.

6.  ‘Custody embraces the sum of parental rights with respect to the rearing of a child, including its care. It includes the right to the child's services and earnings . . . and the right to direct his activities and make decisions regarding his care and control, education, health, and religion.’ (Burge v. City & County of San Francisco (1953) 41 Cal.2d 608, 617, 262 P.2d 6, 12.)

PARAS, Associate Justice.

FRIEDMAN, J., concurs.