Respondents in a bill in equity bring this appeal from a final decree providing for complainant's visitation with twin boys of whom complainant is the putative father: said twins having been born out of wedlock.
The case was heard on the pleadings and evidence of witnesses examined ore tenus in open court. That evidence is not in the record—for what reason we do not know. So that, the review must be based on the assumption that the evidence supports the facts found by the court as set out in the decree. We quote the finding and decree, as follows:
Reliance is had by appellants on the case of Baugh v. Maddox, Ala., 95 So.2d 268, which was a suit in equity brought in the name of a bastard child by his next friend against the putative father seeking provision for support. The respondent had been adjudged to be the father of the child in a bastardy proceeding as provided in Title 6, section 1 et seq., Code, and provision was made for the payment of $100 annually for ten years for the child's support. But it was alleged that such amount was wholly inadequate for his support, maintenance and education. The denial of relief was based on the theory that there was no legal duty on the part of the father to support a bastard child except as expressly provided by statute; and that the bastardy proceeding above mentioned is the only statutory provision. Therefore, the provision there made must measure the child's right to support from the putative father.
Of course that case is based upon the status which then existed. It had no reference to one where the putative father had legitimated the child as provided in Title 27, section 11, Code. A compliance with that statute results in rendering the child capable of inheriting the estate of the adopting parent as if the child had been born in wedlock. We think the inference is clear that when the statute is complied with the child not only is capable of inheriting as a legitimate child would, but such putative father puts himself in the attitude of a legitimate parent with respect to the child's maintenance and support. It is a public declaration which cannot be denied. There are only two procedures which serve to legitimate a bastard and make him capable of inheriting from his father. They are section 10, Title 27, Code, by the putative father marrying the mother and recognizing his paternity of the child; and pursuing the course provided for in section 11, Title 27, supra. Lingen v. Lingen, 45 Ala. 410.
The authorities hold, as expressed in 10 C.J.S. Bastards § 17, p. 84, that "a father has a legal right to reasonable access to his bastard child, where he contributes to its support, and there is no showing that such right would be detrimental to the child's best interests". Baker v. Baker, 81 N.J.Eq. 135, 85 A. 816; Strong v. Owens, 91 Cal.App.2d 336, 205 P.2d 48.
But this right of visitation by the putative father should not be dependent upon evidence of actual support and maintenance unless there is a failure or refusal to do so on demand. It is not always so conditioned. Ex parte Hendrix, 186 Okl. 712, 100 P.2d 444.
It appears that these children were born on March 5, 1957. This bill was filed August 9, 1957. No question of a failure
Appellants' answer alleges in substance that appellee seeks to use a decree of the court permitting visitation by him as an excuse to gain an opportunity to disrupt the peace and tranquility of the life of the mother and of her present husband; and that it will have such a tendency. There is some merit in that contention. We think the generality of the decree of the court should be modified so it will not be left to appellee to decide when it would be reasonable and appropriate for the visitation to occur, the place where and the length of time it should continue. The court should determine those details subject to change to meet changed conditions which may arise.
The decree of the trial court should be reversed and the cause remanded with instructions that the decree conform to the foregoing directions.
The foregoing opinion was prepared by FOSTER, Supernumerary Justice of this Court, while serving on it at the request of the Chief Justice under authority of Title 13, section 32, Code, and was adopted by the Court as its opinion.
Reversed and remanded with instructions.
LIVINGSTON, C. J., and LAWSON, MERRILL and COLEMAN, JJ., concur.