California Supreme And Appellate Court
Case Summaries
Family Law

FAMILY LAW
Family Law Case Summaries

■ In re ES D052768

 In this appeal, H.S. (Father) challenges a family court order which (1) awards permanent sole physical and legal custody of his daughter, E. S. (E.), to Father's brother and sister-in-law, N.S. and D.S. (Uncle and Aunt), and (2) allows Father supervised visitation with his daughter, with the supervised aspect to be lifted upon concurrence of Father's and E.'s therapists.  Father raises constitutional challenges to Family Code[1] section 3041, the statute that governs custody disputes between a parent and a nonparent.  In the published portion of this opinion, we reject the constitutional challenges.  Father also challenges the merits of the trial court's rulings.  In the unpublished portion of this opinion, we reject these challenges.  Accordingly, we affirm the order.

Factual and Procedural Summary

            This appeal arises from a custody dispute between Father and Uncle and Aunt.  The biological mother, K.S. (Mother), is not involved in the proceedings on appeal.  Uncle and Aunt were E.'s primary caretakers essentially from birth.  Father paid child support and visited E. at the Uncle and Aunt's residence, and became more involved in parenting as E. grew older.  The family court became involved early in E.'s life when Mother filed a motion to determine custody.  In the early stages of the proceedings, Father agreed that E. should stay in the stable home provided by Uncle and Aunt, and the trial court consistently ordered that E.'s primary residence be with Uncle and Aunt.  When Father began demonstrating a parenting style that caused Uncle and Aunt to have concerns for the child's well-being, they requested that he participate in mediation to resolve these disputes.  Father refused, and instead petitioned the court for custody.  This is the custody petition at issue in the order currently before us for review.

            At the time of the most recent proceedings, E. was five years old.  The professionals involved in the case concurred that Father was not prepared to assume full custody, and that it would be detrimental to move E. from Uncle and Aunt's home.  At the custody hearing, Father conceded that a complete switch in custody was premature, but requested that he be given joint legal and physical custody with unsupervised custodial time, and that a review hearing be set to reevaluate the custodial arrangement.  The trial court declined his request, finding that E.'s need for a permanent, stable situation was paramount and that it was necessary to end the "tug of war" between her caretakers about her upbringing.  Accordingly, the court issued a permanent custody order awarding sole legal and physical custody to Uncle and Aunt, and supervised visitation to Father, with the supervision aspect subject to removal upon the concurrence of E.'s and Father's therapists.  Father challenges this ruling on appeal.

■ FootNote

[1] Subsequent statutory references are to the Family Code unless otherwise specified.
[2] Because Mother is not a party on appeal, in our summation of the facts we focus primarily on matters relevant to Father

■ HELD:

In a child custody action, trial court's award of custody to non-parent is affirmed where: 1) Family Code sec. 3041 does not violate father's constitutional right to due process of law in regards to his parental rights as the statute requires a finding of clear and convincing evidence of detriment to the child as well as a finding of what is in the best interests of the child in awarding custody to a non-parent; and 2) there is no constitutional deficiency in permitting custody to be awarded to a non-parent without a finding of parental unfitness as a requirement of finding a detriment to the child from parental custody achieves a proper balance that comports with constitutional due process.

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