Courts take serious their responsibility to protect children. A parent who neglects or abuses a child is almost always seen as unfit to have custody and may even be limited or restricted in visiting with the child.
Any behavior that is detrimental to the health or welfare of the child by those seeking custody will be given great weight by the court. Neglect of the physical needs of the child, such as insufficient food, medical care, and hygiene, could determine the custody award. Serious consideration by the family law judge is given to instances of child and spousal abuse. When there are allegations of abuse, whether physical, sexual, or emotional, a child welfare agency may intervene, and where severe, there is the possibility of criminal action against the offending parent. While courts seek to promote the relationship between parent and child, they do recognize that some situations require limiting, restricting, supervising, or denying visitation.
If a parent has abused or threatened to abuse a child, a court may limit the amount of visitation or restrict it by curtailing the number of hours of visitation, barring overnight visits, imposing conditions (such as no alcohol) or requiring the presence of a third-party during periods of visitation. The amount and quality of the restrictions may reflect or be proportional to the severity of the abuse. Illicit sexual conduct and domestic violence are seen as actions detrimental to the child.
EVIDENCE OF ABUSE
Relatives, neighbors and others who have witnessed abusive acts many give oral testimony of what they have observed. Medical records may also be presented. Evidence of domestic violence, directed at the other parent or siblings may also be introduced especially where there is a pattern of behavior or lack of remorse.
There must be real evidence of abuse before a court should act. When restriction of visitation is desired as a result of a fear that is not supported by the evidence, courts should not impose restraints.
For example, a few courts have addressed the question of whether a parent diagnosed with Acquired Immune Deficiency Syndrome (AIDS) may be denied visitation. Based upon the expert medical evidence regarding the transmissibility of the disease, these courts have held that just being infected with HIV or AIDS was not a sufficient basis for curtailing visitation. However, if the parent is actively engaged in abuse of drugs or sexual conduct that could be disruptive to the parenting relationship (i.e., late night parties, constant turnover of sexual partners) then time share limitations may be imposed on the offending parent.
In an ongoing effort to protect the health and welfare of a child, California Family Law Courts look at the emotional health of the child, as well as the child’s physical well being. In instances where emotional harm is manifest, time share restrictions or third-party supervision may be imposed. However, most courts are averse to denying visitation altogether.
The California Family Code operates under the tension of restricting any behavior harmful to the child all the while attempting to foster the parent-child relationship. Each abuse case and the need to protect the child varies with every family system. In response, the courts have ordered remedy specific supervised or limited visitation where a parent has shown great anger or hostility in the presence of the child. Various forms of counseling could be ordered as a condition of visitation.
Evidence of the child’s emotional harm may include bedwetting, stuttering, or atypical home or school behavior. In some instances, a child that tries to be “perfect” or is overly concerned with the offending parents’ emotional needs may also be a victim of an overbearing and manipulative parent. True hostility between a parent and child could also evidence emotional harm. Supporting testimony of an expert, counselor, or teacher on the child’s mental health may be necessary for the court to establish the potential or ongoing harm.
It should be noted that if the custodial parent promotes or brings about the conflict between the noncustodial parent and the child, in order to deny or restrict the noncustodial parent’s visitation rights, the courts recognize this behavior as parental alienation. In such situations, custody by the offending parent may not be denied, but family counseling may be ordered. If the alienation continues, then the court may have to consider a complete change of custody of the child to the parent that is not behaving in this damaging fashion.
The California Child Custody laws are designed for the primary purpose of protecting the child and promoting healthy, frequent and continuing contact with each parent. In instances where a parent is harming the child directly by physical abuse or indirectly with emotional abuse, the non-offending parent should take quick action by requesting help from the courts. This action can consist of filing a motion to get an order to immediately stop the behavior or contact, as well as seek other court orders for the best interests of the child.
About The Author:
A family law attorney for over 30 years, Arlene D. Kock based in San Ramon, CA, has extensive expertise in this specialized field. Arlene possess an in-depth understanding of California law, which emphasizes the development of parenting plans in family law cases that involve children, handling cases in all Northern California jurisdictions. Arlene is also a member of the LawGuru Attorney Network.