Kelly v. Kelly

[75 CalApp2d Page 409] This is an appeal from an order of the Superior Court of Los Angeles County determining the custody of a minor child. Plaintiff father secured an interlocutory judgment of divorce in 1941, in which judgment it was provided that plaintiff and defendant have joint custody of the minor child, Patricia, then approximately three years of age, but that plaintiff have physical custody and control until otherwise ordered by the court. In September, 1942, defendant applied for a modification of the interlocutory judgment so as to grant her full custody of the child. Upon recommendation of the court investigator it was ordered on October 23, 1942, ""that the plaintiff shall continue with the custody, care and control of the minor child until further order of the court."" In October, 1944, defendant filed an affidavit, entitled ""Modification Questionnaire,"" whereupon an order to show cause why the order of October 23, 1942, should not be modified was issued. In this proceeding plaintiff filed a counteraffidavit, and hearings on the order to show cause were had at intervals from November, 1944, to June, 1945. On July 24, 1945, the trial court entered its order ""that until further order of this Court, both parents are fit and proper persons to have the custody of said minor child, Patricia Kelly, and said parents are awarded the joint custody of said minor child, with physical custody of said minor child in the mother, . . ."" The court further ordered that the mother have the child during the school term and the father during the vacation periods; and that the father be ""entitled to reasonable visitation of said minor child during the period of time that said minor child is with the mother."" From the foregoing order of July 24, 1945, plaintiff father prosecutes this appeal.