Child Custody and Law : Appeals court contributes clarity to family debate

The 4th District Court of Appeal in Santa Ana is often on the forefront of family law cases, and recently has had some significant pronouncements.

In one case, it allowed children to remain with their grandmother when their father sought custody. In so doing, it put the children’s welfare first. In the process, it also contributed some clarity to the continuing debate over whether the biological parents always have the last word in custody cases.

The appeals court ruled in an opinion released last month that when a child is taken from the custody of one or both parents and given to a grandparent, it’s up to the father or mother to make a good case for getting the child back. That may seem to be logical and not much more than common sense, but it represents a further erosion of the long-held legal concept rooted in “natural law” that made parental custody nearly sacrosanct.

The court’s presiding justice and writer of the opinion, David G. Sills, made a compelling case for leaving the children where they are.

Court documents said the children’s father was an alcoholic and their mother suffered from “severe mental problems” that left the couple unable to care for their two young daughters. A judge earlier had given custody of the girls to their maternal grandmother, who was already caring for their brother. The father overcame his drinking problem and asked a court to give him custody of the girls.

Sills, joined by two other appeals court judges, said the father had “no psychological relationship with the children” and had not arranged for their schooling, day care or medical needs. The grandmother did “an outstanding job” with the children, who formed a strong psychological relationship with her, the judges said. To break the bond between grandparent and children would be an unjustifiable shock. Sills said California’s guardianship law was troublesome because the Legislature wrote the statute in such a way that it was open to interpretation that a guardianship might be terminated even if it was not in the best interest of the child to do so. Lawyers involved in judicial child care cases said the ruling gave important guidance in custody cases where parents and grandparents are at odds.

About 750,000 grandparents in California and about 4 million nationwide care for their grandchildren, according to the U.S. Census Bureau and studies by experts in the field. Census figures said between 1990 and 1997 the number of children living with grandparents increased by 23% nationally.

Social workers say a major reason for the increase is the devastation wrought by drugs. In some cases parents die from drug overdoses. In many others, they wind up in prison. Most judges are happy to see grandparents step forward to take custody of a child. Another alternative would be adoption or foster care, though Orange County unfortunately has a shortage of foster parents and people willing to adopt. In cases where no one steps forward, a child can wind up in a group home, which child care specialists consider the worst alternative.

The difficulty of a single parent, usually a mother, caring for a child, was addressed by the same appeals court, though different judges, in another case that was recently publicized.

In that one, a woman who left her 8-year-old daughter alone at home while she auditioned for a singing job was convicted of misdemeanor child abuse for inflicting “unjustifiable mental suffering” on the child. The court overturned the conviction, as it should have. Parents need to be careful in deciding when a child is old enough to be left alone, but this case did not appear to warrant criminal prosecution.

It is clear from the opinion that lawyers and judges across the country are wrestling with the larger issue of the difficulties of single parents, usually low-paid women, juggling job and child care. The appeals court noted the high number of households with children headed by women that live below the poverty line. That’s a strong indication that law enforcement officials have to do a better job of collecting child support payments ordered by courts.

The Santa Ana court in recent years also has been called on to determine custody in surrogate parenting cases. In some instances, including surrogacy, the judges have urged the Legislature to respond, so far without effect. Given the pressures of modern society, the judges are likely to be confronted with more such cases. So far they have done a commendable job of interpreting the law in ways that keep the interests of children paramount.