## Facts

- Husband and wife had a daughter about six or seven years old.
- The wife sought a divorce on the ground of extreme cruelty, alleging the husband attempted to kill her by shooting her.
- The husband asserted the shooting was justified by the wife’s alleged infidelity; the record contained no supporting evidence.
- Although the husband was otherwise described as generally peaceable, the trial court granted the wife a divorce for extreme cruelty.
- The trial court nonetheless awarded custody of the minor daughter to the husband.
- The wife appealed only the custody portion of the decree.

## Issues

1. Whether a custody award to a father should stand where the divorce was granted to the mother for the father’s extreme cruelty, including an attempted killing, and the child was of tender years.
2. Whether the child’s welfare required placing custody with the mother absent proof of maternal unfitness.

## Decision

- The court reversed the custody award to the father.
- The court directed that custody be placed with the mother on remand, consistent with the child’s welfare (with any appropriate limited parental access for the father).

## Legal Principles

- In custody determinations incident to divorce, the child’s welfare is the controlling consideration, not any automatic parental entitlement.
- For a child of tender years, particularly a young daughter, courts generally prefer custody with the mother if she is fit.
- Severe marital misconduct by a parent—especially deliberate violence such as an attempt on the other spouse’s life—bears strongly on parental fitness for custody, even if the parent is otherwise regarded as peaceable.
- Allegations used to justify misconduct (such as claimed adultery) must be supported by evidence; unsupported accusations do not establish the other parent’s unfitness.

## Conclusion

The court held that the child’s welfare governed custody and that, given the father’s extreme cruelty and the absence of evidence of maternal unfitness, custody of a young daughter should be awarded to the mother rather than to the offending father.


Wand v. Wand, 14 Cal. 512 (Cal. 1860)