California Court Denied Father’s Request for Custody

Whether parents are married or not, when they decide to split up or divorce, there will be matters of child custody to address. In an ideal situation, the parents will agree to a parenting plan that serves the best interests of the children. But because parents who no longer want to stay together are typically poised to argue over most issues related to their separation, they often fail to see eye to eye on what is best for their kids. And in certain severe situations, the juvenile court will have to get involved to ensure that the child’s health and welfare are adequately protected. If you are facing a child custody dispute of any kind, it is important to contact a local San Diego family law attorney who can effectively protect your family’s rights under the circumstances.

In an unfortunate case, the California court of appeals reviewed the juvenile court’s denial of the father’s request for custody of his five-year-old daughter and seven-year-old son. In this case, the children had been living with their mother before they were removed from her custody under § 361 of the Welfare and Institutions Code. On February 15, 2013, the Los Angeles County Department of Children and Family Services (the “Department”) received notification that the mother was using drugs and had been neglectful of the children. A year before that, the father prepaid the mother’s rent and moved to Mexico. It seems that the mother left her children alone, without food, sold her food stamps, and used drugs and drank alcohol.

At the end of February 2013, the Department removed the children from the mother’s home and later filed a § 300 petition on behalf of the children, alleging illicit drug use and physical abuse by the mother. The father requested that the children be released to his custody, arguing that there was no evidence of risk to the children. The juvenile court denied his request based on evidence that the father failed to protect the kids from the mother’s abuse and neglect. The court further ordered an investigation into the father’s home life in Mexico. The couple’s seven-year-old son reported that his father hit him with a belt, and the daughter stated that the father hit the boy “a lot.”

The juvenile court denied the father’s request for custody, finding “by clear and convincing evidence there exist[s] a substantial danger to the children’s health.” The father appealed, arguing that the court failed to consider his request under § 361.2 of the Welfare Code, which requires the court to place a dependent child with the noncustodial parent unless the court finds the placement would be detrimental to the child’s safety, protection, or physical or emotional well-being. The Department argued that the statute did not apply to this scenario. While the court of appeals agreed that the court should have considered the father’s request under that statute, the failure to do so was “harmless.” Here, since the record established that the court made a finding under § 361– by clear and convincing evidence — that placing the children with the father would pose a danger to the children, the court’s error was harmless.

In divorce cases and situations where parents split up, the courts in California have a primary goal: to protect the best interests of the children involved. It is important to consult with counsel who understands the applicable law and how it can affect a custody dispute. A family law attorney would best know how to prepare and present your case to achieve the optimal parenting plan for your family.

Roy M. Doppelt is a seasoned divorce attorney who has more than 20 years of experience assisting clients with child custody cases throughout the State of California. 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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