My response:
I agree in the result, but not with the reasoning.
The age of consent in California is age 18. However, she can't litigate an allegation that could have been alleged in the initial petition. She's estopped from bringing up new issues that had relevance in "the first go around".
Second, and despite the "statutory rape", a judge is not going to remove a child from a stable environment. Her "track record" belies that stability. A judge will choose the better between two evils and, right now, you're it.
New statutory authority for court-ordered substance abuse testing: New Ca Fam § 3041.5, enacted as urgency legislation effective 2/23/04 (but with a 1/1/08 "sunset date"), closes the gap left by Wainwright (interpreting Ca Fam § 3011(d) as not authorizing the court to order a parent to submit to drug testing).
The new statute expressly authorizes a court in a Ca Fam § 3021 custody or visitation proceeding to require a parent seeking custody or visitation to undergo testing for the illegal use of controlled substances and use of alcohol, subject to carefully-defined conditions that address the constitutional concerns noted in Wainwright. [New Ca Fam § 3041.5(a)]
Among other things, § 3041.5 requires that before testing may be ordered, there must be a judicial determination, based on a preponderance of the evidence, that there is habitual, frequent or continual illegal drug use or habitual or continual alcohol abuse by the parent. If testing is ordered, it must be by way of the least intrusive means and must be performed in accordance with procedures and standards established by the U.S. Department of Health and Human Services for drug testing of federal employees. A positive test result will not itself constitute grounds for an adverse custody decision but is only a factor to weigh along with all other relevant factors. [Ca Fam § 3041.5(a)]
A sole or joint custody award to a parent alleged to be a habitual or continual illegal drug user or alcohol abuser triggers the Ca Fam § 3011(e)(1) findings requirements . . . unless the custody award is made pursuant to the parties' written or on-the-record stipulation. [Ca Fam § 3011(e)(1),(2)]
In determining whether the § 3044(a) presumption has been rebutted, the court must consider all of the following factors (Ca Fam § 3044(b) (amended Stats. 2003, Ch. 243)):
• Whether the perpetrator has shown that awarding him or her sole or joint legal or physical custody would be in the child's best interest (Ca Fam § 3044(b)(1);
• Whether the perpetrator has successfully completed a batterer's treatment program meeting criteria outlined in Ca Penal § 1203.097(c) (Ca Fam § 3044(b)(2));
• Whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling, if the court determines such counseling is appropriate (Ca Fam § 3044(b)(3));
• Whether the perpetrator has successfully completed a parenting class, if the court determines the class to be appropriate (Ca Fam § 3044(b) (4));
• Whether the perpetrator is on probation or parole and whether he or she has complied with the terms and conditions of probation or parole (Ca Fam § 3044(b)(5));
• Whether the perpetrator is restrained by a protective order or restraining order and whether he or she has complied with its terms and conditions (Ca Fam § 3044(b)(6));
• Whether the perpetrator has committed any further acts of domestic violence (Ca Fam § 3044(b)(7)).
Parents' emotional makeup:
The parents' character, disposition, emotional stability (e.g., drug or alcohol dependency, violent tendencies or patterns of abusive behavior); neglect or indifference toward the child; whether the child will be better cared for and more secure with one or the other (again, based on evidence and not assumptions; Burchard v. Garay, supra, 42 Cal.3d at 540, 229 Cal.Rptr. at 806). [Colombo v. Colombo (1945) 71 Cal.App.2d 577, 580-583, 162 P.2d 995, 997-998; see Hobby v. Hobby (1963) 214 Cal.App.2d 246, 247-249, 29 Cal.Rptr. 472, 473-474--custody change warranted where mother addicted to heroin and imprisoned upon revocation of parole re drug abuse conviction; Marriage of Roe (1993) 18 Cal.App.4th 1483, 1490-1491, 23 Cal.Rptr.2d 295, 299-300 (disapproved on other grounds in Marriage of Burgess (1996) 13 Cal.4th 25, 38, 51 Cal.Rptr.2d 444, 454, fn. 10)--grant of primary custody to mother requesting move-away order warranted where evidence showed she had superior parenting skills and would not try to sabotage child's relationship with father (whereas father refused to acknowledge child's emotional problems and might be tempted to thwart child's relationship with mother)]
Don't worry. Her petition will be denied.
IAAL
