A California appeals court recently held in a 2-1 opinion that a father who molested his six-year-old stepdaughter should not have his two-year-old son removed from his custody based solely on the purported molestation. In the case, In re David R., the Second Appellate District overturned an order from the Superior Court of Los Angeles County which stated that a two-year-old child, David, should be made a dependent of the court. The county court reportedly removed David despite that no evidence was offered to support the Department of Children and Family Services’ assertion that the child was at risk of being sexually assaulted by his father. Although the appeals court stated the father’s behavior was “abhorrent,” it was reportedly not sufficient to support a finding that David was at “substantial risk of sexual abuse.”
The Second Appellate District also held that the county court committed reversible error when it removed David from his father’s custody because the lower court failed to consider any of the factors listed in Section 300 of the California Welfare and Institutions Code. In addition, the appeals court stated the purpose behind California’s dependency law is not parental punishment, but instead to ensure that the best interests of each child are pursued. The case was reversed and remanded to the county court for further proceedings.
In his dissent, Presiding Judge Robert Mallano disagreed with the other members of the court and stated California law assumes any parent who molests a child necessarily poses a risk to other children who reside in the same home. Interestingly, state appellate courts are currently split on this issue and a similar case was recently granted review by the California Supreme Court.
Despite that many relevant details about this case are not immediately apparent, it is important to note that a number of factors play a role in child custody decisions in California. Although California parents normally share custody of their children, this is not always the best option available. Generally, legal custody includes decision-making about a child’s health care, education, and general welfare. Physical custody normally describes a child’s visitation schedule. Although one parent may receive primary physical custody in some situations, it is usually jointly held by both of a child’s parents. Sometimes, however, the best interests of a child may dictate that one or neither parent retains physical or legal custody. If you have child custody concerns, you are advised to contact an experienced family law attorney to help you protect your rights.
If you are a parent who has questions regarding child custody and visitation matters, you should contact Doppelt & Forney today. Mr. Doppelt is a hardworking Coronado family lawyer who has more than 20 years of experience representing parents in Southern California. Doppelt & Forney serves clients in Scripps Ranch, Linda Vista, Encinitas, San Diego, and throughout Southern California. For a free consultation with a knowledgeable family law attorney, contact Doppelt & Forney through the law firm’s website or give us a call toll-free at (800) ROY IS IT (769-4748).
Unmarried Fathers in San Diego: What Happens Next in 2013?, San Diego Divorce Lawyer Blog, January 3, 2012
How to Cancel a Filed Declaration of Paternity in San Diego in 2013, San Diego Divorce Lawyer Blog, December 27, 2012
Court says man who molested daughter can keep custody of son, by Bob Egelko, San Francisco Gate
In Re David R., No. B239629, (2d Dist., December 31, 2012)
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