In re DeLeon

In In re DeLeon (1924) 70 Cal.App. 1, the court reasoned: "Subdivision 2 of section 224 of the Civil Code does not, in and of itself, purport to make any disposition or authorize any orders in relation to minor children, but, relates simply to the question of consent, and in and of itself does not authorize any disposition of a minor child. Such disposition is governed by section 138 of the Civil Code. That section reads as follows: 'In actions for divorce the court may, during the pendency of the action, or at the final hearing or at any time thereafter during the minority of any of the children of the marriage, make such order for the custody, care, education, maintenance and support of such minor children as may seem necessary or proper, and may at any time modify or vacate the same.' Whatever may be the terms of the order awarding the custody of a minor child to either of the parents in a divorce proceeding, it is evident from the wording of this section that so long as the child involved continues to be a minor there is no such thing as a final order pertaining to the custody of such child. The care and custody of the child can be inquired into at any time. This care and custody, however, can only be inquired into while the child in question is and continues to be, in contemplation of law, the child of the divorced parents. If, by any legal proceeding, this relationship is extinguished, the jurisdiction and power of the court in which the divorce proceedings were taken and had immediately terminate. The same reasoning would lead to the conclusion that when the parent to whom the custody of a child in a divorce proceeding is awarded dies, the order of award becomes immediately of no force or effect, for the simple reason there is no one upon whom it can operate or anyone in existence capable of asserting any rights thereunder."