The Divorce Court Found That Conclusory Accusations Do Not Constitute Evidence Sufficient To Support A Finding Of Abuse

In an initial custody determination, the divorce court has the widest discretion to choose a parenting plan that is in the best interest of the children, and must consider all circumstances bearing on the best interest of the children, including the health, safety, and welfare of the children, any history of abuse by one parent, the nature and amount of contact with both parents, and the use of controlled substances or alcohol by either parent.

C.S. (“Mother”) divorce lawyer appeals from an order awarding sole child custody of her children to A.G. (“Father”). The divorce court ruled that mother was unable to establish a specific, credible incident of abuse. On appeal, mother’s divorce lawyer contended that the divorce court erred by not basing its order on the children’s best interests, committing prejudicial evidentiary rulings, denying mother’s request during trial for a continuance to obtain counsel, and committing other separate errors that constituted cumulative error. Specifically, mother’s divorce lawyer claimed that the divorce court failed to consider mandatory factors under Family Code section 3011, improperly penalized her for moving to Marin County in order to escape her abuser, and based its decision on improper conclusions about Mother’s mental state without an evidentiary basis.

The Court of Appeal disagreed with Mother’s divorce lawyer’s contentions and affirmed the divorce court’s order. The Court of Appeal reasoned that it looked to all circumstances bearing on the best interest of the minor children, including: (a) the health, safety, and welfare of the children; (b) any history of abuse by one parent [against any child of the parent; the other parent; or a parent, current spouse, or cohabitant, of the parent seeking custody]; (c) the nature and amount of contact with both parents; and (d) the habitual or continual illegal use of controlled substances, the habitual or continual abuse of alcohol, or the habitual or continual abuse of prescribed controlled substances by either parent. Based on these factors, the Court of Appeal found that there was no evidence of abuse by Father. The Court of Appeal considered that the evidence revealed that Mother had a history of running away, refusing to share custody with Father, and appeared mentally unstable. Because Mother only set forth conclusory accusations against Father, she did not sufficiently set forth any evidence that Father had abused the children. Although there was evidence that the minor children feared Father, government investigators closed the investigation as inconclusive, as the evidence lacked corroboration from any outside agency, such as law enforcement and their records. Thus, the divorce court’s child custody order was affirmed.

A.G. v. C.S. (2016) 246 Cal.App.4th 1269