Opinion
No. 6995.
October 19, 1960.
Appeal from the Superior Court of Navajo County, R.C. Stanford, Jr., J.
W.E. Ferguson, Holbrook, and C.D. McCauley, Winslow, for appellant.
Marshall W. Haislip and Minne Sorenson, Phoenix, for appellee. On Motion for Rehearing: Christy, Kleinman, Peterson Hoyt, Phoenix, for appellee.
Upon motion for rehearing we have determined that the proper procedure for the disposition of this case should have been to send it back to the trial court for the limited purpose of hearing evidence on the issue of the fitness of appellant-father, Dowell P. Ward, to have custody of the child. As we indicated in our original opinion, no such determination has been made. While in the absence of evidence to the contrary the law presumes the fitness of the father to have partial custody, Stewart v. Stewart, 41 Cal.2d 447, 260 P.2d 44, in this case the appellee-mother has alleged the unfitness of the father and is entitled to have an opportunity to put in evidence on the issue of whether or not the appellant is a fit and proper person to have the care, custody and control of the minor child.
Our original decision is modified to read; the judgment of the trial court is reversed, and the cause is remanded for the limited purpose of hearing evidence on the issue of the fitness of the appellant, Dowell P. Ward, to have custody of the child. Our previous opinion and order are in all other respects affirmed.