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A Requisite Finding of Parental Unfitness is Necessary to Award Child Custody to a Non-Parent

In October, 1969 the mother (Petitioner) was awarded child custody of her son through an interlocutory dissolution decree in Washington. The father died shortly after in April, 1970, and a battle ensued between the grandparents (Respondents) and their daughter, Petitioner. In June, 1978, the Petitioner’s family law attorney allegedly placed the child permanently with the Respondents. However, in February 1979 Respondent’s family law attorney filed a petition in the Washington court seeking child custody. Petitioner’s family law attorney opposed the petition and kidnapped the child from school and took him to Orange County, which violated the decree of the Washington court restraining removal from its jurisdiction. Respondents brought the child back to Washington in March, 1979 via writ of habeas corpus, but then after a full probate investigation both in Washington and Orange County, a report was submitted which recommended child custody in Petitioner’s favor, and continued contact with Respondents.

The Washington court relinquished jurisdiction over the case, and the Orange County court assumed it. The Respondent’s family law attorney commenced a proceeding in August, 1979 through a petition in the Orange County trial court for modification of the Washington interlocutory decree, to secure the Respondent’s visitation rights. However, Petitioner’s family law attorney argues Respondents do not have any standing to intervene in this action. Shortly after, Petitioner violated the court orders and fled with the child to Stateline, Nevada where she lived without contacting the Respondents from November, 1979 to April, 1980. Respondents exercised their Easter visitation rights and then forcibly seized the child and took him to Washington.

The matter came to trial in Orange County Superior Court in July 1980, and the Orange County Superior Court issued its order which found Petitioner a fit parent. The Orange County Superior Court also awarded the Respondents visitation rights and unlimited telephone and letter communications with the child. Furthermore, it ordered Petitioner to keep the Orange County probate department informed of her whereabouts and required her to obtain its approval for any residence and employment changes.

In the most recent proceedings, a psychologist report recommended that the child be given to the Respondents rather than the Petitioner. However, Petitioner’s family law attorney contended that the court’s order makes it impossible to raise the child, and that it’s a burden on Petitioner’s right to live where she chooses.

California follows the majority rule that the right to child custody reverts automatically to the surviving parent, unless he or she is proved unfit. However, there is no authority on what happens when the non-custodial parent dies. In In re DeLeon, supra, 70 Cal.App. 1,6 232 P.738, the Court reasoned that “Subdivision 2 of section 224 of the Civil Code does not, in and of itself, purport to make any disposition or authorize any orders in relation to minor children, but relates simply to the question of consent, and in and of itself does not authorize any disposition of minor children.” Id. The disposition “is governed by section 138 of the Civil Code” and states “in actions for divorce the court may, during the pendency of the action, or at the final hearing or at any time thereafter during the minority of any children of the marriage, make such order for the custody, care, education, maintenance and support of such minor children as may seem necessary or property, and may at any time modify or vacate the same.” Id. Furthermore, the Court reasoned that “whatever may be the terms of the order awarding the custody of a minor child to either of the parents in a divorce proceeding, it is evident from the wording of [section 183] that so long as the child involved continues to be a minor there is no such thing as a final order pertaining to the custody of such child.” Id.

Civil Code section 4601 “provides discretionary visitation for nonparents, which, however, must give way to the paramount right to parent if the visitation creates conflicts and problems.” This Court has found no reason why a parent should be treated differently from all the other kinds of enumerated parents and should be subject to recall before the family law court, even in the state where the decree was rendered, in a modification proceeding. The jurisdiction issue does not turn on whether this matter began as a modification procedure or some other child custody determining procedure. And the only reason to take the child from Petitioner is if she is unfit, which the Orange County divorce court did not find. This Court found the Orange County family law court granted extensive visitation to the Respondents. In California what matters is the basic necessary finding of parental unfitness, a factor which has been absent here. There is also no other authority that allows a family law court order counseling and granting a third party visitation. The child placement decisions must take into account the law’s limitations, incapacity to supervise interpersonal relations.

The Court concluded there was no lawful basis shown for the Orange County family law court’s order; and issued a writ of mandate vacating the order of the Orange County Superior Court.

In Re: Marriage of Jenkens, (1981) 116 Cal. App. 3rd 767