San Diego Divorce Lawyer Blog
Many child custody issues arise within or are connected to a divorce proceeding. Courts will generally refer to what is known as “the best interests of the child” standard when making any rulings concerning a child’s custody arrangement. There are other cases, however, that address a child’s best interests, separate and apart from a divorce proceeding. Unfortunately, some parents have children under circumstances that are less than ideal, and they often display an inability to appropriately care for their children. When that happens, courts throughout the state of California will step in to protect the child and his or her well-being. If you are confronting a child custody matter, whether it arises from a divorce process or any other situation, you are encouraged to contact an experienced family law attorney from the San Diego area, who will work to vigorously protect your family’s rights.
When a parent is deemed unfit to raise a child, there are certain steps that the parent can take in an attempt to “reunify” with the child. But courts carefully review these requests in order to fully protect the best interests of the child. In a recent case, Child Protective Services (“CPS”) filed a dependency petition alleging that a mother failed to “protect” her son, who was born in 2013. According to the petition, the mother had a chronic substance abuse problem, failed to complete court-ordered drug treatment programs, and even used drugs while pregnant with her child. When the baby was born, he tested positive for marijuana. Furthermore, the mother had already lost custody of her two older children for similar drug-related reasons.
The CPS recommended that “reunification services” be bypassed in this case because of her long-term substance abuse issues. Despite the mother’s requests that she be entitled to such services, the trial court concluded that she had not made reasonable efforts to remedy the substance abuse problems that had caused the removal of her child in the first instance. Therefore, the court denied reunification services as not being in the child’s best interests. The child was deemed adoptable, and he bonded with his foster family. The court ultimately terminated the mother’s parental rights.
The mother appealed, claiming that she was denied effective assistance of counsel because her lawyer did not file a § 388 petition showing a “change of circumstances” that under the law could justify reunification services. In order to succeed on such a claim, the mother would need to show that her attorney’s representation fell below an objective standard of reasonableness and resulted in prejudice. For example, she would need to show that, had the petition been filed, there was a reasonable probability that it would have been awarded.
Under a § 388 petition, the movant must prove that there has been a substantial change of circumstances such that a modification of the prior order would be in the best interests of the child. Here, the court deemed the mother’s recent sobriety as “changing” but not changed circumstances, insufficient to support a modification of the order. The court also held that the mother did not indicate how reunification services would be in the child’s best interests. Ultimately, the court determined that a § 388 order for reunification services at this point would deprive the child of a permanent, stable home in exchange for a future that is uncertain.
Here, the court clearly was looking out for the best interests of the child. If you are considering divorce and have children, it is best to get an understanding of how a court will treat your case as far as custody and visitation matters are concerned. The best course of action is to contact an experienced family lawyer who will know how to handle your matter.
Roy M. Doppelt has more than 20 years of experience assisting clients throughout the state of California with all of their family law needs. Doppelt and Forney, APLC serves clients in San Diego, Encinitas, Scripps Ranch, Linda Vista, and throughout Southern California. To schedule a free, confidential consultation, call Doppelt and Forney, APLC toll-free at (800) ROY IS IT (769-4748) or contact us through the law firm’s website.
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