R
rtyson
Guest
California: What are the rights of a de facto parent
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I AM ALWAYS LIABLE
Senior Member
My response:
Please explain the situation, and your definition of "de facto parent."
IAAL
Please explain the situation, and your definition of "de facto parent."
IAAL
R
rtyson
Guest
As a foster parent for more than two years, my husband petitioned and was granted de facto parent status( defined in points and authorities as the person who on a day to day basis assumes role of parent seeking to fulfill both the child's physical and psychological needs for affection and care). My question is besides being able to sit in on and be noticed in further hearings regarding reunification, what rights can this give us?
I AM ALWAYS LIABLE
Senior Member
My response:
A "person having an interest in a dependent child" is within the meaning of Welfare & Institutions Code §388, and a de facto parent has standing to petition for visitation rights with respect to child.
A recent case involved the rights of a coparent in a dependency proceeding. A foster child was placed with the couple at 2 weeks of age. Although both women wanted to adopt the child, the social worker recommended that they use only one name in the dependency and adoption proceedings. The relationship between the women terminated, and for 3 years there was frequent visitation between the child and the partner who had moved out of the family home. Then the remaining partner severed the visitation. The First Appellate District held that the out-of-home partner had standing to seek de facto parent status as well as to petition the court for visitation rights. [In re Hirenia C. (1993) 18 Cal.App.4th 504, 22 Cal.Rptr.2d 443]
Before granting custody to a nonparent without the parents’ consent, the court must find both that granting custody to a parent would be detrimental to the child, and that the award to a nonparent is necessary to serve the child’s best interest. Allegations that parental custody would be detrimental may not appear in the pleadings, except for a statement of that ultimate fact. The court has discretion to exclude the public from the hearing on the detriment issue. [Fam C §3041]
In Re G. (1974) 11 Cal 3d 679, 114 Cal Rptr 444, 523 P2d 244, the court analyzed at length the 1969 enactment of CC §4600, which formerly contained the provisions now in Fam C §3041, and concluded that while the Legislature had altered the judicially developed parental preference doctrine by changing the focus from the unfitness of the parent to the detriment to the child, it did not intend to disturb the judicial practice of awarding custody to nonparents in preference to parents only in unusual and extreme cases. The court required a clear showing that an award to the nonparent "is essential to avert harm to the child," not merely a finding that the award will promote the child’s best interest. Thus, the nonparent bears the burden of proving by clear and convincing evidence that an award to the parent would be detrimental to the child. [Guardianship of Phillip B. (1983, 1st Dist) 139 Cal App 3d 407, 188 Cal Rptr 781]
The following circumstances have been held sufficient to establish the detriment necessary for an award of custody to a nonparent:
(1). The father was an unemployed high school student whose social and sexual relationships and academic record demonstrated lack of maturity and judgment, another custody change might be necessary if he moved out of his mother’s house, and in the testimony of an expert that it would be detrimental to remove the infant child from his prospective adoptive parents’ home, where he had been thriving for 5 months. [Michael U. v Jamie B. (1985) 39 Cal 3d 787, 218 Cal Rptr 39, 705 P2d 362]
(2). The parents made a calculated decision to remain emotionally and physically detached from their developmentally disabled son (the mere fact that they had institutionalized him was not a factor), and had refused to consent to recommended heart surgery. [Guardianship of Phillip B. (1983, 1st Dist) 139 Cal App 3d 407, 188 Cal Rptr 781]
(3). A psychiatrist’s testimony supported the trial court’s finding that it would be detrimental to take the child from the home of a de facto parent with whom he had lived for 7 years, and award custody to a parent with whom he had had very little contact. [Re Volkland (1977, 2nd Dist) 74 Cal App 3d 674, 141 Cal Rptr 625; see also Re Reyna (1976, 5th Dist) 55 Cal App 3d 288, 126 Cal Rptr 138 (error to refuse offer of proof as to psychological harm that would result from taking child from prospective adoptive parents)]
(4). The mother could not control the child and his antisocial behavior, which was greatly affected by his negative interaction with her. [Re B. (1976, 3rd Dist) 62 Cal App 3d 89, 132 Cal Rptr 720]
On the other hand, a finding that the father’s custody would not be detrimental to his children was affirmed even though the father was in prison for murdering his ex-wife, the children’s mother, in Re M. (1976, 4th Dist) 65 Cal App 3d 254, 135 Cal Rptr 222. The court noted that the trial court could reasonably find that the crime was one of passion, and did not constitute neglect of or cruelty toward the children, even though it deprived them of their mother’s love and care.
In determining which nonparent should receive custody, the court is required to "consider and give due weight to" a parent’s nomination of a guardian under Prob C §§1500 et seq. [Fam C §3043]; Such a nomination must be given "substantial consideration." [Guardianship of Donaldson (1986, 5th Dist) 178 Cal App 3d 477, 223 Cal Rptr 707] And, preference must be given to nonparents who have provided a "wholesome and stable" home over others who might be deemed suitable candidates for custody. [Fam C §§3040(a)(2), 3040(a)(3)]
In order for a nonparent to obtain appointment as guardian of a child who has a living parent, the nonparent must show (1) that parental custody is detrimental to the minor and (2) that an award of custody to a nonparent is required to serve the best interests of the child. The non-parent need not show serious abuse, neglect or abandonment. Loss of a relationship with a nonparent who has acted as a de facto or psychological parent may be a factor supporting a finding of detriment. [In re Guardianship of Olivia J., 84 Cal.App.4th 1146, 101 Cal.Rptr.2d 364, (1st Dist. 2000)] In contrast, the criterion applicable to terminating a nonparent’s guardianship is that the parent must show overall fitness on his or her part sufficient to overcome the inherent trauma of removing a successful caregiver. [Guardianship of Simpson, 67 Cal. App. 4th 914, 79 Cal. Rptr. 2d 389 (4th Dist. 1998), as modified on denial of reh'g, (Dec. 7, 1998) and review denied, (Feb. 24, 1999)]
Two recent cases have identified factors relevant to the appointment of a non-parent as guardian. In Guardianship of Z.C.W. (1999) 71 Cal.App.4th 524, 84 Cal.Rptr.2d 48, review den. (Jul 21, 1999) and cert. den. (U.S. 1999) 120 S.Ct. 603, the court determined that, absent clear and convincing evidence that parental custody was detrimental, there was no basis for appointing as guardian the former lesbian lover of the biological mother of two children. The court concluded that the existence of a de facto parental relationship with the children while the biological mother and her lover were living together did not create any grounds for establishment of a guardianship after the relationship ended. In Guardianship of Zachary H. (1999) 73 Cal.App.4th 51, 86 Cal.Rptr.2d 7, review den. (Sept 22, 1999), the court acknowledged that in appointing a guardian it was governed by the Family Code provisions relating to custody of a child. However, the court determined that a child’s interest in remaining in a stable and permanent environment overrode the priority for parental custody set forth in the Family Code. The court rejected the parent’s argument that the federal Constitution required a showing of parental unfitness before appointment of a non-parent as guardian.
Good luck to you.
IAAL
A "person having an interest in a dependent child" is within the meaning of Welfare & Institutions Code §388, and a de facto parent has standing to petition for visitation rights with respect to child.
A recent case involved the rights of a coparent in a dependency proceeding. A foster child was placed with the couple at 2 weeks of age. Although both women wanted to adopt the child, the social worker recommended that they use only one name in the dependency and adoption proceedings. The relationship between the women terminated, and for 3 years there was frequent visitation between the child and the partner who had moved out of the family home. Then the remaining partner severed the visitation. The First Appellate District held that the out-of-home partner had standing to seek de facto parent status as well as to petition the court for visitation rights. [In re Hirenia C. (1993) 18 Cal.App.4th 504, 22 Cal.Rptr.2d 443]
Before granting custody to a nonparent without the parents’ consent, the court must find both that granting custody to a parent would be detrimental to the child, and that the award to a nonparent is necessary to serve the child’s best interest. Allegations that parental custody would be detrimental may not appear in the pleadings, except for a statement of that ultimate fact. The court has discretion to exclude the public from the hearing on the detriment issue. [Fam C §3041]
In Re G. (1974) 11 Cal 3d 679, 114 Cal Rptr 444, 523 P2d 244, the court analyzed at length the 1969 enactment of CC §4600, which formerly contained the provisions now in Fam C §3041, and concluded that while the Legislature had altered the judicially developed parental preference doctrine by changing the focus from the unfitness of the parent to the detriment to the child, it did not intend to disturb the judicial practice of awarding custody to nonparents in preference to parents only in unusual and extreme cases. The court required a clear showing that an award to the nonparent "is essential to avert harm to the child," not merely a finding that the award will promote the child’s best interest. Thus, the nonparent bears the burden of proving by clear and convincing evidence that an award to the parent would be detrimental to the child. [Guardianship of Phillip B. (1983, 1st Dist) 139 Cal App 3d 407, 188 Cal Rptr 781]
The following circumstances have been held sufficient to establish the detriment necessary for an award of custody to a nonparent:
(1). The father was an unemployed high school student whose social and sexual relationships and academic record demonstrated lack of maturity and judgment, another custody change might be necessary if he moved out of his mother’s house, and in the testimony of an expert that it would be detrimental to remove the infant child from his prospective adoptive parents’ home, where he had been thriving for 5 months. [Michael U. v Jamie B. (1985) 39 Cal 3d 787, 218 Cal Rptr 39, 705 P2d 362]
(2). The parents made a calculated decision to remain emotionally and physically detached from their developmentally disabled son (the mere fact that they had institutionalized him was not a factor), and had refused to consent to recommended heart surgery. [Guardianship of Phillip B. (1983, 1st Dist) 139 Cal App 3d 407, 188 Cal Rptr 781]
(3). A psychiatrist’s testimony supported the trial court’s finding that it would be detrimental to take the child from the home of a de facto parent with whom he had lived for 7 years, and award custody to a parent with whom he had had very little contact. [Re Volkland (1977, 2nd Dist) 74 Cal App 3d 674, 141 Cal Rptr 625; see also Re Reyna (1976, 5th Dist) 55 Cal App 3d 288, 126 Cal Rptr 138 (error to refuse offer of proof as to psychological harm that would result from taking child from prospective adoptive parents)]
(4). The mother could not control the child and his antisocial behavior, which was greatly affected by his negative interaction with her. [Re B. (1976, 3rd Dist) 62 Cal App 3d 89, 132 Cal Rptr 720]
On the other hand, a finding that the father’s custody would not be detrimental to his children was affirmed even though the father was in prison for murdering his ex-wife, the children’s mother, in Re M. (1976, 4th Dist) 65 Cal App 3d 254, 135 Cal Rptr 222. The court noted that the trial court could reasonably find that the crime was one of passion, and did not constitute neglect of or cruelty toward the children, even though it deprived them of their mother’s love and care.
In determining which nonparent should receive custody, the court is required to "consider and give due weight to" a parent’s nomination of a guardian under Prob C §§1500 et seq. [Fam C §3043]; Such a nomination must be given "substantial consideration." [Guardianship of Donaldson (1986, 5th Dist) 178 Cal App 3d 477, 223 Cal Rptr 707] And, preference must be given to nonparents who have provided a "wholesome and stable" home over others who might be deemed suitable candidates for custody. [Fam C §§3040(a)(2), 3040(a)(3)]
In order for a nonparent to obtain appointment as guardian of a child who has a living parent, the nonparent must show (1) that parental custody is detrimental to the minor and (2) that an award of custody to a nonparent is required to serve the best interests of the child. The non-parent need not show serious abuse, neglect or abandonment. Loss of a relationship with a nonparent who has acted as a de facto or psychological parent may be a factor supporting a finding of detriment. [In re Guardianship of Olivia J., 84 Cal.App.4th 1146, 101 Cal.Rptr.2d 364, (1st Dist. 2000)] In contrast, the criterion applicable to terminating a nonparent’s guardianship is that the parent must show overall fitness on his or her part sufficient to overcome the inherent trauma of removing a successful caregiver. [Guardianship of Simpson, 67 Cal. App. 4th 914, 79 Cal. Rptr. 2d 389 (4th Dist. 1998), as modified on denial of reh'g, (Dec. 7, 1998) and review denied, (Feb. 24, 1999)]
Two recent cases have identified factors relevant to the appointment of a non-parent as guardian. In Guardianship of Z.C.W. (1999) 71 Cal.App.4th 524, 84 Cal.Rptr.2d 48, review den. (Jul 21, 1999) and cert. den. (U.S. 1999) 120 S.Ct. 603, the court determined that, absent clear and convincing evidence that parental custody was detrimental, there was no basis for appointing as guardian the former lesbian lover of the biological mother of two children. The court concluded that the existence of a de facto parental relationship with the children while the biological mother and her lover were living together did not create any grounds for establishment of a guardianship after the relationship ended. In Guardianship of Zachary H. (1999) 73 Cal.App.4th 51, 86 Cal.Rptr.2d 7, review den. (Sept 22, 1999), the court acknowledged that in appointing a guardian it was governed by the Family Code provisions relating to custody of a child. However, the court determined that a child’s interest in remaining in a stable and permanent environment overrode the priority for parental custody set forth in the Family Code. The court rejected the parent’s argument that the federal Constitution required a showing of parental unfitness before appointment of a non-parent as guardian.
Good luck to you.
IAAL
R
rtyson
Guest
ok I've read the codes and I understand the words but as a point of clarification, does this really mean the court has granted coustody of this child to my husband and if so how might this affect reunification trial next month? and would you recommend retaining counsel to represent us in the courtroom
I AM ALWAYS LIABLE
Senior Member
My response:
Your status has nothing to do with reunification. If the court feels that the "best interests of the child" is to be with the parent(s), then that's it.
The only matters concerning you will be :
1. Whether you can, or will, be entitled to court ordered visitation, due to your de facto parentage, and due to the fact that you have a long relationship with the child.
2. If reunification doesn't work, then there will be the issue of whether or not the court will continue your de facto parentage, or place the child into another foster care home.
If numbers 1 and / or 2 mean anything to you, then I would definately get an attorney to represent MY interests viz-a-viz the child.
Good luck to you.
IAAL
Your status has nothing to do with reunification. If the court feels that the "best interests of the child" is to be with the parent(s), then that's it.
The only matters concerning you will be :
1. Whether you can, or will, be entitled to court ordered visitation, due to your de facto parentage, and due to the fact that you have a long relationship with the child.
2. If reunification doesn't work, then there will be the issue of whether or not the court will continue your de facto parentage, or place the child into another foster care home.
If numbers 1 and / or 2 mean anything to you, then I would definately get an attorney to represent MY interests viz-a-viz the child.
Good luck to you.
IAAL