Court Says Dad Must Pose Harm to Be Denied Visits

In a victory for parental rights advocates, an appellate court ruled Thursday that a father must pose an actual harm to his child--not merely show negligence--to be denied his fundamental visitation rights.

The finding came as the 4th District Court of Appeal in Santa Ana, reversing a lower court, restored visitation rights to an unidentified Costa Mesa man who had failed to see his young son for more than a year.

Legal specialists in family law called the decision an important declaration that a parent’s right to see a child is an essential one that cannot be dismissed haphazardly unless there is a clear danger to the child. But experts differed over how the ruling fits into current family law trends--some seeing it as a clear break, others as a continuation of the status quo.

Last year, the Orange County mother in the dispute, identified for reasons of confidentiality as Beverly S., went to court to have her current husband adopt her son and to deny the boy’s birth father--her ex-husband--any visitation rights.

She charged that the ex-husband, identified by the court as Scott C., had in effect abandoned 7-year-old Jason because of his sporadic visits and through his failure to pay child support while unemployed.

Superior Court Judge Robert J. Polis agreed. Finding that the father had failed to exercise his visitation rights for 13 months, with the exception of a single “token” appearance, the judge cut off the father’s visits.

But in an opinion written by Justice Edward J. Wallin and released Thursday, the 4th District Court of Appeal faulted that decision. The court ruled that the father’s negligence alone could not justify the severe step of cutting off visitation rights altogether; the parent must pose an actual harm to the child.

“It makes no sense to effect such a drastic result without first requiring a finding that the continuation of Scott’s rights would be detrimental to Jason,” the court ruled. “No evidence was presented to show this.”

The court said its adherence to this higher standard is designed “to safeguard parental rights.”

Tony Testa, president of an Orange County support and legal counsel group called Fathers United For Equal Justice, called the decision an important victory.

“The message that’s being sent here is that it is in the best interests of a child to see and be with his father,” Testa said.

Testa and others active in fathers’ rights issues argue that negligence cannot be used to justify cutting off visits, because often it is the mother who prevents the father from seeing his child.

Shelley L. Albaum, a Los Angeles attorney who specializes in family law and represented the father in the case that was the subject of Thursday’s ruling, characterized the decision as “bucking the trend” of recent legal rulings.

“I see it as the only clear ruling in the 4th District--even in the state--to say that a finding of detriment to the child is needed (to sever visitation); a benign harm won’t do it.”