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In re E.S.


May 8, 2009


APPEAL from an order of the Superior Court of San Diego County, Lantz Lewis, Judge. Affirmed. (San Diego County Super. Ct. No. ED58227).

The opinion of the court was delivered by: Haller, J.


In this appeal, H.S. (Father) challenges a family court order which (1) awards permanent sole physical and legal custody of his daughter, E. S. (E.), to Father's brother and sister-in-law, N.S. and D.S. (Uncle and Aunt), and (2) allows Father supervised visitation with his daughter, with the supervised aspect to be lifted upon concurrence of Father's and E.'s therapists. Father raises constitutional challenges to Family Code*fn2 section 3041, the statute that governs custody disputes between a parent and a non-parent. In the published portion of this opinion, we reject the constitutional challenges. Father also challenges the merits of the trial court's rulings. In the unpublished portion of this opinion, we reject these challenges. Accordingly, we affirm the order.

Factual and Procedural Summary

This appeal arises from a custody dispute between Father and Uncle and Aunt. The biological mother, K.S. (Mother), is not involved in the proceedings on appeal. Uncle and Aunt were E.'s primary caretakers essentially from birth. Father paid child support and visited E. at the Uncle and Aunt's residence, and became more involved in parenting as E. grew older. The family court became involved early in E.'s life when Mother filed a motion to determine custody. In the early stages of the proceedings, Father agreed that E. should stay in the stable home provided by Uncle and Aunt, and the trial court consistently ordered that E.'s primary residence be with Uncle and Aunt.

When Father began demonstrating a parenting style that caused Uncle and Aunt to have concerns for the child's well-being, they requested that he participate in mediation to resolve these disputes. Father refused, and instead petitioned the court for custody. This is the custody petition at issue in the order currently before us for review.

At the time of the most recent proceedings, E. was five years old. The professionals involved in the case concurred that Father was not prepared to assume full custody, and that it would be detrimental to move E. from Uncle and Aunt's home. At the custody hearing, Father conceded that a complete switch in custody was premature, but requested that he be given joint legal and physical custody with unsupervised custodial time, and that a review hearing be set to reevaluate the custodial arrangement. The trial court declined his request, finding that E.'s need for a permanent, stable situation was paramount and that it was necessary to end the "tug of war" between her caretakers about her upbringing. Accordingly, the court issued a permanent custody order awarding sole legal and physical custody to Uncle and Aunt, and supervised visitation to Father, with the supervision aspect subject to removal upon the concurrence of E.'s and Father's therapists. Father challenges this ruling on appeal.


E. was born in January 2003. Father and Mother were not married or involved in an ongoing relationship.*fn3 Mother suffered from bipolar disorder and had a history of erratic behavior, particularly when she did not take her medications. When E. was born, Father, age 50, worked full-time as an attorney and lived alone. Father voluntarily commenced paying child support but, apart from visitation of the child at Uncle and Aunt's residence, did not initially attempt to assume an active parental role. However, Uncle and Aunt befriended Mother and became actively involved helping her both before and after E.'s birth. Uncle is an attorney, and Aunt is trained as a nurse and has raised two sons.

Mother was sent to a psychiatric hospital for about 10 days shortly after E.'s birth. Uncle and Aunt took care of E. while Mother was hospitalized and continued to assist Mother with E. when Mother returned home. During the early months of E.'s life, Father visited E. several times a week when she was at Uncle and Aunt's residence. Father acknowledged that he was not prepared to parent E. on his own, explaining that he was involved in a myriad of time-consuming activities, including his law practice in San Diego and real estate ventures in Las Vegas; he had to travel extensively; and he did not have the time or parental skills to raise a baby girl.

The family court proceedings were commenced in May 2003 when Mother filed a petition seeking an award of joint legal custody to her and Father, primary physical custody to her, and visitation to Father. Father requested that he be awarded sole legal and physical custody, but acknowledged that he needed Aunt's and Uncle's support because he knew "nothing about children." Uncle and Aunt stated they were willing to continue in their role as a support system to both parents, including Father's "stated intent to learn how to be a good parent" to E. At the time of these 2003 proceedings, the Family Court Services (FCS) counselor assigned to the case observed that Uncle and Aunt had "maneuvered through a difficult path between two hostile parents, working to be a mediating presence, and are, without a doubt, the primary source of soundness of judgment and stability at this time, in matters relating to E." In September 2003, the trial court ordered joint legal and physical custody to Mother and Father, with Father's custodial time to occur at Uncle and Aunt's residence. The court ordered Father to complete a parenting class and appointed counsel to represent E.

In December 2003, apparently because Mother was again sent to a psychiatric hospital, both Mother and Father agreed that E. should primarily live at Uncle and Aunt's residence. In March 2004, Father and Mother stipulated that Uncle and Aunt should be joined in the custody proceedings.

In April 2004, when E. was almost 16 months old, E'.s counsel (Catherine Leffler) recommended that Mother, Father, and Uncle and Aunt all share joint legal custody, and that the primary residence be with Uncle and Aunt, with visitation to Mother and Father. To support her recommendation, Attorney Leffler stated that E. was primarily bonded with Uncle and Aunt, and that Uncle and Aunt had supported Father and Mother in their relationships with E. However, Father had not spent any significant time with E. when Uncle and Aunt were not also present, and E. viewed him as a " 'friendly visitor.' " Although Father had completed a parenting class, he "[did] not demonstrate an understanding of [E.'s] needs nor her developmental requirements." He had never been responsible for her daily care; on the two occasions when he took her on outings he was accompanied by a female friend (D.C.); and he acknowledged that he did not have the ability to care for E. by himself. Nevertheless, he resented the control that Uncle and Aunt had over him in making decisions about visiting E., and "[y]et he ha[d] permitted E. to bond with them as her primary parent figures, by default. He has had numerous opportunities to spend more time with her, to care for her and to develop a parental relationship with her, but has not done so, for one reason or another."*fn4 Attorney Leffler opined that if Father would spend more time with E. on a frequent and consistent basis and begin to care for her with some regularity, he perhaps could expand his relationship with her. Attorney Leffler recommended that Father have extended visitation with E., expanding to overnights, when supervised by D.C. and with the agreement of Uncle and Aunt.

Based on Attorney Leffler's recommendations, in May 2004 the court issued an order providing for joint legal custody to Father, Mother, Uncle and Aunt; physical residence with Uncle and Aunt; visitation by Father and Mother; and Father's visitation to expand to overnights when supervised by D.C. and agreed upon by Uncle and Aunt. In October 2004 the court issued an order specifying that Father's visitation would occur on Thursdays, Fridays, and Saturdays from 6:00 p.m. to 8:00 p.m.

Father's Request for More Parenting Time in 2005

In June 2005, when E. was two and one-half years old, Mother again filed an application seeking physical custody of E. All agreed (except for Mother) that Mother could not provide a safe home for E. At this time, Father requested that he be allowed more parenting time with E. at his home. Father stated that his life was beginning to stabilize and he had more time available to spend with E., including two to three weekdays and weekends. He had been seeing E. about two to three times per week; he had taken her on outings; and he wanted to gradually integrate her into his life so she could spend overnights with him. He acknowledged that he was still not fully comfortable taking care of E. without the help of another person, and that his friend D.C. assisted him. He stated that he had had some problems with getting Uncle and Aunt's cooperation with visitation. Although he recognized that it was of "paramount importance" that Uncle and Aunt remain connected with E., he did not think it was fair that they be her primary caretakers for the rest of her childhood when he was capable of accepting that responsibility. He stated he wanted to hire a nanny to implement his plan to gradually assume a greater parenting role.

Uncle and Aunt believed the current visitation schedule was working "fairly well" and should continue. The FCS counselor opined that Uncle and Aunt were "the only guaranteed source of ongoing, long-term stability" and that Father was not able to provide her the stable environment she needed. Attorney Leffler acknowledged that there had been some improvement in Father's relationship with E. in that he felt more comfortable with her and had taken her on outings, but noted that by his own admission he was still not able to take care of E. without substantial assistance. Attorney Leffler recommended that the current custody arrangement remain intact, but that Father's visitation schedule be as agreed upon by the parties, with disputes to be resolved by her.

In September 2005, the trial court issued an order adopting Attorney Leffler's recommendations-i.e., joint legal custody to Father, Uncle, and Aunt; primary residence with Uncle and Aunt; visitation with Father and Mother; and Father's visitation scheduled per the parties' agreement with disputes resolved by Attorney Leffler. The court acceded to Father's request that he be permitted to hire a nanny, ruling that he could employ "a mutually acceptable child care provider."

Development of Problems in 2006

For a period of time, the parties were apparently able to work out Father's visitation in relatively smooth fashion. However, at some point in 2006 problems developed because Father was spending more time with E., and Uncle and Aunt had developed concerns about his inappropriate and inattentive behavior with E. In October 2006, in an attempt to resolve the developing conflicts, Attorney Leffler recommended mediation and also proposed a more fixed visitation schedule. Based on her recommendation, visitation with Father was scheduled on Wednesdays and Fridays from 10:30 a.m. to 6:00 p.m., and every other weekend from Friday at 10:30 a.m. to Sunday at 6:00 p.m. During this same period, Father took E. on a vacation to Las Vegas with D.C. and D.C.'s young daughter. He also hired one or more nannies, although it appears they were in his employ for only a short period of time.

On December 12, 2006, Father filed an ex parte application, stating that Uncle and Aunt were not permitting him to take E. on a prepaid and properly noticed vacation to Hawaii with D.C. and D.C.'s daughter. Opposing his application, Uncle and Aunt explained that E. was scheduled on the same dates as the Hawaii trip to go to Los Angeles to meet Mother's prospective in-laws; the latter had booked flights from out of state to meet E. after Uncle and Aunt had approved the visit; and Father should not have booked the Hawaii vacation without first checking with Uncle and Aunt about any conflicts. Attorney Leffler had retired and was not available to resolve the dispute.

In their opposition, Uncle and Aunt also submitted declarations stating that although they were committed to encouraging E. to develop a strong and lasting relationship with Father, they were concerned about Father's inability to understand or focus on E.'s needs. They described at length the nature of his interactions with E. which they viewed as showing his lack of insight and/or interest in responding to her appropriately. They provided a statement from a nanny who Father had hired to care for E., who reported her concerns about Father's attitude and behavior.*fn5 On December 12, 2006, the trial court denied Father's ex parte request to be permitted to take E. on the Hawaii trip.

In February and March 2007, the parties exchanged a series of letters in which Uncle and Aunt expressed their concerns about the way Father was caring for E. during visitations and requested that Father participate in mediation to address these concerns. Father did not agree to mediation. Uncle and Aunt notified Father that they would no longer be agreeing to overnight visits and vacations with E. because he had refused their requests to speak in a mediated environment about their concerns. They identified the issues of concern that they wished to discuss in mediation, including security concerns, exposure to age-inappropriate material, discipline issues, talking negatively about them in E.'s presence, pressure put on E. about such matters as religion and where she lives; and the frequency and duration of trip requests.

Father's Request for Full Custody in 2007

In April 2007, Father filed the petition at issue here, requesting that the custody order be modified to provide him full legal and physical custody of E. (now age four), with visitation to Uncle and Aunt.

In his petition, Father stated that now that he had spent more time with E. and other children, attended parenting classes, and read parenting books, he felt confident he could care for E. on his own. He had closed his law practice, was semi-retired, only traveled one week per month to Las Vegas to oversee his rental properties, and was otherwise fully available to take care of E. He had spent frequent, quality time with E. and she loved him and was bonded with him. D.C. submitted a declaration in support of Father's request, stating that Father was currently taking care of her own five-year-old daughter two afternoons per week (along with E.); he took the two girls on fun outings; she fully trusted him; she had personally observed him interact and play with E. and her daughter; and that he was "a loving and dedicated father who will do almost anything to make his daughter secure and happy."

Uncle and Aunt opposed Father's proposed modification to the custody order. They explained that they had welcomed the possibility that one or both of E.'s parents would become able and willing to raise E., but as time went on and this did not happen they became, in E.'s mind, her parents. Under the current visitation schedule, E. spent all day every Wednesday and Friday and all day every other Saturday and Sunday with Father. Uncle and Aunt had stopped the overnight visitations because of their concerns about Father's behavior and attitudes and his refusal to go to mediation to discuss these matters.*fn6

In May 2007, while Father's petition to modify custody was pending, Uncle and Aunt developed concerns that Father might have sexually molested E. based on some statements that E. made and other troubling behaviors by E. They told E.'s pediatrician about this, and she notified Child Protective Services (CPS). Based on this development, the court ordered that Father be provided up to 10 hours of professionally supervised visitation per week, and set the matter for a later review hearing. After an investigation, CPS concluded the allegations were unfounded, but recommended that Father's visitation remain supervised and that E. participate in therapy.

In response to Uncle and Aunt's opposition to his custody petition, Father submitted declarations from himself and other individuals to support his position that his parenting was appropriate and that he was fully attentive to E.'s needs.*fn7

Over the next several months, the case was extensively evaluated by newly-appointed counsel for E. (William Benjamin). Attorney Benjamin met and spoke with Father and Uncle and Aunt on multiple occasions, and conferred with the therapist who had been appointed to treat E., the professional supervisor at Father's visits, Attorney Leffler, and the CPS worker. He also observed E. with her Uncle and Aunt at their home and with Father during both supervised and unsupervised visits.*fn8 In August 2007, September 2007, and January 2008, Attorney Benjamin prepared and submitted three reports to the trial court.

Attorney Benjamin reported that E. perceived Uncle and Aunt as her primary caretakers; she experienced fear when transitioning to Father but clearly loved him and enjoyed being with him; and Father had been observed by the professional supervisor to have an age-inappropriate parenting style with E.*fn9 Attorney Benjamin observed that when the professional supervisor was not present, Father "was much more at ease with E." E. also interacted better with Father when the supervisor was not present, because E. would attempt to include the supervisor in the activities which sometimes left Father "on the outside."

In his August 2007 report, Attorney Benjamin concluded that although Father would like to see more of E., he was "not necessarily equipped at this time to personally handle the day to day care taking tasks associated with a four year old little girl. [Father] himself makes very clear his intention to hire or associate others to meet these needs. [Father] expresses more firmly his desire to provide E. with experiences he believes will broaden her horizons; such as traveling vacations. . . ." For example, Father stated that regardless of whether or not he was the primary parent, he believed he should be able to take E. on trips with him, such as on cruises, to Club Med, to Las Vegas, and to Hawaii. Attorney Benjamin also noted Uncle and Aunt's view that Father had inappropriate " 'boundaries' " for E., for example taking her to see plays such as " 'Gypsy.'"

Attorney Benjamin opined that Father appeared "stimulated by adult interests, which he would like to involve his daughter in as a partner, and has and will continue to retain the services of others to provide more age appropriate interaction for E. [¶] . . . [¶] There would at least appear to be, at first blush, a lack of knowledge or instinct on the part of [Father] regarding developmental and emotional needs of minor children of the age of [E.] On the other hand, there are no reliable sources suggesting that [Father] would intentionally injure, physically or emotionally, the minor child."

Based on these conclusions, in his August 2007 report Attorney Benjamin concluded that supervised visitation was not indicated. However, Attorney Benjamin and E.'s therapist were not comfortable with allowing overnight visitation at that time. Attorney Benjamin was also concerned about the "cold and almost non existent communication" between Father and Uncle and Aunt, and he recommended that all three parties pursue this issue through therapy. He recommended that Father also obtain therapy to develop enhanced parenting skills, and that E. continue in therapy. He recommended that the existing visitation schedule be maintained (Wednesdays and Fridays from 4:30 to 7:00 p.m. and alternate weekends from 10:00 a.m. to 3:00 p.m.), but that the visitation be unsupervised. He recommended that Father, Uncle, and Aunt continue to share joint legal custody, except that in the event of a disagreement Uncle and Aunt would have the sole authority to make decisions related to E.'s education and healthcare, and that a mediator be selected to resolve future parenting disputes.

In his second report in September 2007, Attorney Benjamin retracted his recommendation for unsupervised visitation based on Father's conduct shortly after the supervision requirement was lifted. Attorney Benjamin explained that based on his recommendations in his previous report, the parties had stipulated to initiate unsupervised visitation with Father, and had agreed to engage in therapy and to have their therapists and E.'s therapist exchange information to coordinate these efforts. However, almost immediately after the supervised aspect of visitation was lifted, Father took E. to see the play " 'Chicago,' " which has "content, language and visuals . . . well beyond what a four-year-old child would normally be exposed [to]." E. told Uncle and Aunt that there were " 'dirty words' " and " 'sexy dancing' " in the play, and expressed a desire to learn how to do that " 'sexy dancing.' " Attorney Benjamin concluded that Father appeared to still need substantial guidance regarding boundaries for E.; to be "less than enthusiastic about making any effort to interact with [E.] in an age appropriate manner"; and to be "intent on sabotaging efforts to accomplish such interaction." Attorney Benjamin recommended that the court consider reinstituting supervised visitation for Father for a 12-month period, and then set a review hearing to obtain input from the professionals involved in the case as to whether to relax the supervised aspect of the contact. Based on Attorney Benjamin's recommendation, in October 2007 the trial court reimposed the supervision requirement pending further hearing on the matter.

In his final report in January 2008, Attorney Benjamin responded to the court's request for specific recommendations for a permanent custodial arrangement. Attorney Benjamin noted that Uncle and Aunt had served as E.'s de facto parents essentially since birth. He opined that "[w]hile the parties have the capability of cooperating in jointly raising the minor child, there has, to date, been no evidence to support the premise that this is likely to consistently occur in the near future." Further, Father had not demonstrated an ability to appropriately parent a five-year-old female child, and had repeatedly demonstrated that he could not do so. "As an example, when it was disclosed that [Father] took the minor child to see the play, 'Chicago,' after having previously been criticized for taking the child to see the play, 'Gypsy,' the reaction of [Father] was not only to ignore the concerns related to the subject matter of those two plays, but rather to seek to justify his actions by arguing those two plays do provide age-appropriate material for the then four-year-old minor child." Father's lack of parenting skills were observed by all the professionals involved in the matter, which "includes relinquishing care to others at almost every opportunity; or providing in advance for same." In the view of E.'s therapist, E. looked almost exclusively to Uncle and Aunt for direction and emotional support, and removing or reducing that role at this time would severely impact her emotional stability. Additionally, the therapist and Attorney Benjamin had observed that Uncle and Aunt have at times failed to use appropriate discipline with E. because E. "has the ability to manipulate [them] because she senses or is aware of their fear they could be removed as her primary custodians."

Attorney Benjamin recommended that legal and physical custody be with Uncle and Aunt, with all parties to continue in therapy to address the various parenting issues. Father should have access to academic and health records and should be given notice of and be allowed to attend health appointments, school conferences, and other activities. Father should have supervised visitation on a regular basis, with visits to become unsupervised upon the concurrence of E.'s and Father's therapists.

Trial Court's Ruling

The matter was heard by the trial court at a hearing on January 11, 2008.*fn10 At the hearing, Father conceded that it was not appropriate to award him primary physical custody at this time but requested that he be awarded joint legal and physical custody with unsupervised visitation. He also requested that the court not issue a permanent custody order, but rather that it issue a temporary order and set the matter for a review hearing to reevaluate the custodial arrangement. He contended that supervised visitation at this juncture would make it very difficult for him to develop a bond with E. Regarding joint legal custody, he asserted that he would continue to work with Uncle and Aunt regarding E.'s needs.

Uncle and Aunt argued that a permanent custody order was needed to provide E. with stability. They requested that the court adopt Attorney Benjamin's recommendations, and emphasized that they did not expect supervised visitation to be required indefinitely. However, they reiterated their view that Father was not ready for unsupervised visitation because he did not understand age-appropriate boundaries for a five-year-old child.

The trial court concluded that the custody arrangement recommended by Attorney Benjamin was appropriate. The court noted that Father had now agreed that it would not be appropriate to "actually make the major shift [in custody] that he had originally proposed," and that this reflected the degree of love that Father had for E. The trial court stated that it was important to issue a final custody order-that could not be changed without a change in circumstances-awarding physical and legal custody to Uncle and Aunt so that E. and all the parties know that "home is with [Uncle and Aunt]." This would allow Father to accept the situation and Uncle and Aunt to know they have a secure environment for E., would enhance both parties' use of appropriate parenting skills without fear of manipulation, would hopefully in time cause the tension between the parties to evaporate, and "might create the foundation for something special where [E.] recognizes that she's got a minimum of three individuals that she can call parents and that are truly invested in her welfare."

Regarding its decision to place sole legal custody with Uncle and Aunt, the court explained to Father: "I see there's some tension in terms of you have a different view of what might be appropriate for your daughter than the individuals who have custody and maybe I'd say primary control. I'm not going to say that your particular preferences are bad or good. That's not my job. [¶] But here's the problem: There's a clash here and I'm going to have to say at this point in time, my mindset is that [E.], as I've said, has a home. I think we should maintain the stability, and just the practicality of the situation demands that she not be subject to inconsistent what I'll call demands. And I'm afraid that [Uncle and Aunt], at least during this period of what I would call legal and physical custody are going to be in the driver's seat regarding the mechanics of socialization. The mechanics of physical safety. [¶] And the reason I say that is because I want to remove [E.] from tension as to what's right and what's appropriate. I'm afraid they will be determining whether it's appropriate to go to a particular type of entertainment venue, whether it's appropriate to go to Club Med and that type of thing, at least under the current order."

The court emphasized that Father's visitation could be changed without a major change in circumstances. Further, the court agreed with Attorney Benjamin's recommendation that the supervision aspect of the visitation order could be lifted without coming back to court if E.'s and Father's therapists agreed that this was appropriate. The court reiterated that to remove the supervision requirement, Father would have to defer to Aunt and Uncle's decisions regarding what was appropriate and safe for E.

Based on these findings, the trial court entered a final custody determination awarding legal and physical custody to Uncle and Aunt. Additionally, Father was entitled to all academic and health records and should be given notice of, and was entitled to attend, all health appointments, school conferences, and other activities. E. shall have supervised contact with Father so that she "can count upon the stability of her hopefully ever increasing relationship with her biological Father." The schedule for the parenting plan was that E. was to be with Father every Wednesday after school until 7:00 p.m., alternate Saturdays and Sundays from 10:00 a.m. to 8:00 p.m., and alternate Mondays from after school until 7:00 p.m. Visits would become unsupervised when E.'s and the Father's therapists concurred that supervision was no longer necessary. The parties were to remain in therapy to enhance their parenting and coparenting skills.


I. Constitutionality of Section 3041

Section 3041 provides that before granting custody of a child to a non-parent over the objection of a parent, the court must find that custody to a parent would be detrimental to the child and that custody to the non-parent is in the best interest of the child. (§ 3041, subd. (a).) The finding of detriment must be supported by clear and convincing evidence, but it does not require a showing of parental unfitness. (§ 3041, subds. (b), (c).) Section 3041 further provides that if a preponderance of the evidence shows a non-parent has assumed the parental role for a substantial period of time by providing a stable home where the child's physical and emotional needs are met (i.e., a de facto parent), this establishes the required showing that nonparental custody is in the best interest of the child and that parental custody would be detrimental. (§ 3041, subds. (c), (d).) However, a parent may refute the evidence supporting custody with a de facto parent by showing by a preponderance of the evidence that there would be no detriment from parental custody and that nonparental custody is not required to serve the best interest of the child. (§ 3041, subd. (d).)*fn11

Thus, under section 3041, subdivision (d), a showing of de facto parent status creates a rebuttable presumption that it would be detrimental to place the child in the custody of a parent and the best interest of the child requires nonparental custody. As explained in Guardianship of L.V. (2006) 136 Cal.App.4th 481, 491, section 3041, subdivision (d) reflects a legislative assessment that " 'continuity and stability in a child's life most certainly count for something' " and "in the absence of proof to the contrary, removing a child from what has been a stable, continuous, and successful placement is detrimental to the child."

Father argues that section 3041 is unconstitutional because it allows nonparental custody (1) based on a preponderance of the evidence standard of proof rather than a clear and convincing evidence standard of proof, and (2) without requiring a finding of parental unfitness. We reject both arguments. As we shall explain, section 3041 requires clear and convincing evidence of detriment to the child to award custody to a non-parent, which showing of detriment may be established by a rebuttable presumption in cases involving de facto parents. Further, in cases involving nonparental custody, the detriment requirement is imposed in addition to the best interest of the child requirement. These standards and criteria represent an appropriate balancing of the competing interests involved in nonparental custody cases and do not run afoul of the Constitution.

A. Standard of Proof

Parents have a constitutional right to due process of law before the state may interfere with their parental rights. (See Santosky v. Kramer (1982) 455 U.S. 745, 753-754.) " '[D]ue process is flexible and calls for such procedural protections as the particular situation demands.' " (Mathews v. Eldridge (1976) 424 U.S. 319, 334.)

To determine whether a procedure satisfies due process, the courts balance three factors: (1) the interest affected by the proceeding; (2) the risk of an erroneous deprivation of the interest created by the state's chosen procedure; and (3) the countervailing interest supporting use of the challenged procedure. (Santosky v. Kramer, supra, 455 U.S. at p. 754; Mathews v. Eldridge, supra, 424 U.S. at p. 335.) One component of procedural due process is the standard of proof used to support the deprivation. The standard of proof must satisfy " 'the constitutional minimum of "fundamental fairness." ' " (Santosky v. Kramer, supra, at p. 756, fn. 8.)

As explained in Santosky: "[T]he minimum standard of proof tolerated by the due process requirement reflects not only the weight of the . . . interests affected, but also a societal judgment about how the risk of error should be distributed between the litigants." (Santosky v. Kramer, supra, 455 U.S. at p. 755.) When the preponderance of the evidence standard of proof is used, the risk of an erroneous deprivation of the interest is shared "in roughly equal fashion" between the parties. (Addington v. Texas (1979) 441 U.S. 418, 423.) The clear and convincing standard represents an intermediate standard that reduces the risk to one litigant by increasing the other litigant's burden of proof. (Id. at p. 424.)

Two competing rights are at issue when a trial court must decide custody issues in a proceeding involving a parent and a de facto parent. Parents have a fundamental right to custody of their children. (Santosky v. Kramer, supra, 455 U.S. at p. 753.) Consistent with this right, the courts apply a "parental preference doctrine" which provides that parents generally have the right to custody of their children over a third party. (In re B.G. (1974) 11 Cal.3d 679, 693-694, & fn. 23.) However, this right is not absolute and must be balanced against a child's "fundamental right . . . to 'have a placement that is stable [and] permanent.' " (In re Jasmon O. (1994) 8 Cal.4th 398, 419; In re Marilyn H. (1993) 5 Cal.4th 295, 306; Guardianship of Zachary H. (1999) 73 Cal.App.4th 51, 64; In re Bridget R. (1996) 41 Cal.App.4th 1483, 1504, 1506-1507; Guardianship of L.V., supra, 136 Cal.App.4th at p. 495; Fish v. Fish (Conn. 2008)939 A.2d 1040, 1055 ["[W]hen 'the child's interest no longer coincides with that of the parent . . . the magnitude of the parent's right to family integrity' is diminished"]; see also In re Vincent M. (2007) 150 Cal.App.4th 1247, 1265-1266.)*fn12 Father's challenge to the standard of proof procedures set forth in section 3041 in essence involves an assertion that the Legislature has not struck a permissible balance when considering these two competing interests and his constitutional right to due process. The contention fails.

Preliminarily, to the extent Father is contending that section 3041 permits detriment to be established by a preponderance of the evidence standard, this claim is incorrect. Section 3041, subdivision (b) provides that detriment must be shown by clear and convincing evidence, subject to subdivision (d).Under subdivision (d), de facto parent status may be establishedby a preponderance of the evidence, and once shown, this status creates a rebuttable presumption of detriment. Reading the statutory provisions together, the statute does not alter the ultimate clear and convincing evidence standard imposed on a non-parent, including a de facto parent. Rather, the statute merely permits clear and convincing evidence of detriment to be proven by means of a rebuttable presumption when a non-parent has acted as the child's de facto parent for a substantial period of time. Thus, section 3041, subdivision (d) does not eliminate the clear and convincing requirement for detriment, but simply allows it to be met through the use of a rebuttable presumption.*fn13

Generally, a state does not violate due process by providing that proof of one fact establishes proof of another fact when there is a rational connection between the two facts. (Usery v. Turner Elkhorn Mining Co. (1976) 428 U.S. 1, 28; County of San Diego v. Brown (1978) 80 Cal.App.3d 297, 306-307; see 1 Witkin, Cal. Evidence (4th ed. 2000) Burden of Proof & Presumptions, § 61, p. 211.) Here, it is rational to infer that removing a child from a long-standing stable home where the child's physical and emotional needs are met constitutes a clear and convincing showing of harm to the child. The Legislature's creation of a rebuttable presumption of clear and convincing evidence of detriment upon a showing of de facto parent status comports with due process.

Although the availability of the presumption arising from de facto parent status relieves the de facto parent of the burden of establishing the detriment/best interest requirements, the presumption is rebuttable by the parent under the lowest preponderance of the evidence standard of proof. Thus, the risk of error is essentially shared equally between the de facto parent (who is afforded the benefit of the presumption after showing de facto status) and the parent (who can rebut the presumption under the lowest standard). Through this equalization of the burdens in the case of de facto parents, the Legislature has recognized the two important, and competing, interests of parental rights and child stability. This balancing of the respective interests comports with due process.

To the extent Father is arguing that, to satisfy constitutional due process, de facto parent status must be shown by clear and convincing evidence, we are not persuaded. By allowing de facto parent status to be shown by the preponderance of the evidence, the risk of error is, again, shared equally between the de facto parent and the parent. Considering the important, and competing, interests at issue-the parent's right to custody and the child's right to stability-the sharing of this risk is appropriate.

B. Parental Unfitness

Father also asserts that section 3041 is unconstitutional because it permits custody to be awarded to a non-parent without a finding of parental unfitness. (§ 3041, subd. (c).) We find no constitutional deficiency. Section 3041, in addition to the best interest of the child requirement, includes a requirement of detriment to the child from parental custody. Considering the competing interests at stake, the use of the detriment standard achieves a proper balance that comports with constitutional due process.

In In re B.G., supra, 11 Cal.3d at pages 694-695, our high court noted the shift from a parental unfitness standard to a detriment to the child standard in cases involving the issue of custody to a non-parent: "[P]rior to the enactment of the Family Law Act in 1969, the decisions had held that an award denying custody to the parent in favor of a non-parent could stand only if the parent had been proven to be unfit. . . . [W]ith the enactment of the Family Law Act, the standard of unfitness was dropped and the Legislature created the new rule that in order to award custody of a child to a non-parent the court was required to render a finding that an award to a parent would be 'detrimental to the child' and that such an award to a non-parent was 'required to serve the best interests of the child.' "

The Legislature's use of the detriment to the child requirement instead of the parental unfitness requirement focuses on the child's interest. (See Guardianship of Zachary H., supra, 73 Cal.App.4th at p. 67 [there may be circumstances where placement with the parent is detrimental to the child even though the parent is not unfit].) This is an appropriate balancing of the competing interests in cases involving custody because a custody ruling under section 3041 does not permanently sever the parental relationship, but it does have the potential to severely impact a child's well-being. Because the parental relationship can still be maintained notwithstanding an award of custody to a non-parent, and because of the state's compelling interest in protecting the child's well-being, the Legislature could properly conclude that the determinative factor should be harm to the child rather than parental fitness. (Accord Guardianship of Zachary H., supra, at pp. 61-62.)

Father argues that without an unfitness requirement, section 3041 is not narrowly tailored to meet its objectives and thus cannot survive a strict scrutiny evaluation. Based on substantive due process principles, a strict scrutiny standard is typically applied in cases that impact a fundamental liberty interest. (In re Jesusa V. (2004) 32 Cal.4th 588, 611; Dawn D. v. Superior Court (1998) 17 Cal.4th 932, 939-940; Jonathan L. v. Superior Court (2008) 165 Cal.App.4th 1074, 1102-1103.) Under this standard, a state may not infringe on an individual's fundamental right unless the countervailing interest is sufficiently compelling to justify the interference and the law is narrowly tailored to serve the countervailing interest. (Dawn D. v. Superior Court, supra, at pp. 940-941; Jonathan L. v. Superior Court, supra, at pp. 1102-1103; In re Bridget R., supra, 41 Cal.App.4th at pp. 1503, 1507.)

The use of the detriment requirement suffices to narrowly tailor the statute. The detriment requirement serves as an impediment-additional to the best interest of the child requirement-that must be overcome to support an award of custody to a non-parent. In custody disputes between parents, the only standard that must be met to satisfy constitutional due process is the best interest of the child showing. (See In re B.G., supra, 11 Cal.3d at p. 698; Fish v. Fish, supra, 939 A.2d at p. 1053 ["In cases in which both parents seek custody . . . 'each fit parent's constitutional right neutralizes the other parent's constitutional right, leaving, generally, the best interest of the child as the sole standard to apply' "].) In contrast, in custody disputes between a parent and a non-parent, the detriment showing is also required. As explained in In re B.G., supra, at p. 698, "As between parents, [the law] permits the court to award custody 'according to the best interests of the child,' but in a dispute between a parent and a non-parent, [the law] imposes the additional stipulation that an award to the non-parent requires a finding that 'an award of custody to a parent would be detrimental to the child.' " Under section 3041, a non-parent will not be awarded custody unless there is "a clear showing that such award is essential to avert harm to the child." (In re B.G., supra, at p. 699.) The detriment requirement narrowly tailors the statute to protect the child's interest with proper acknowledgement of a parent's superior right to custody over a non-parent.

We note that in a recent decision the California Supreme Court recognized that a parental unfitness showing is required to terminate parental rights of a custodial parent, and suggested that a statutory scheme that permits a parent to be deprived of custody and then suffer termination of parental rights without a showing of unfitness at some stage of the proceedings may raise constitutional questions. (Guardianship of Ann S. (2009) 45 Cal.4th 1110, 1129-1130, 1134-1135, & fns. 16-17 (Ann S.).)*fn14 These concerns are not present here. In this case, section 3041 was applied in a family law custody proceeding with no future termination of parental rights at issue. Notably, a parent who loses legal and/or physical custody in a family law custody proceeding is not foreclosed from regaining custody based on changed circumstances. (In re Marriage of Brown & Yana (2006) 37 Cal.4th 947, 956.)

We conclude the insertion of a parental unfitness requirement is not constitutionally mandated in section 3041 custody proceedings.

II. Merits of Trial Court's Rulings

Father challenges the trial court's rulings terminating legal custody and requiring that his visitation be supervised. Regarding legal custody, he contends the trial court (1) abused its discretion by terminating legal custody, and (2) erred by failing to state its reasons for terminating legal custody in its written order. Regarding supervised visitation, he contends the trial court (1) abused its discretion by imposing the supervision requirement, and (2) improperly delegated authority over visitation to therapists.

A. Termination of Legal Custody

1. No Abuse of Discretion to Terminate Legal Custody

Father argues the trial court abused its discretion by terminating his legal custody absent a finding that he was an unfit parent. As stated, section 3041 permits an award of custody to a non-parent upon a showing of clear and convincing evidence of detriment to the child if custody is awarded to the parent and that the best interest of the child require awarding custody to the non-parent. Given the Legislature's undifferentiated use of the term "custody," these standards properly apply to a legal, as well as physical, custody decision. The statute does not impose an unfitness requirement, nor is such an unfitness finding necessary to support the trial court's discretionary decision in this case.*fn15

We will not disturb the trial court's discretionary custody ruling unless it is "arbitrary, whimsical, or capricious." (In re Marriage of Battenburg (1994) 28 Cal.App.4th 1338, 1343.) The trial court could reasonably conclude that by age five, it was time for E. to be afforded the maximum stability available. The record supports that Uncle and Aunt and numerous other observers viewed Father's perception of age-appropriate parenting as askew; because of this a high level of tension had developed between the parties; and this tension was adversely affecting E. Under these circumstances, the trial court could reasonably conclude there was clear and convincing evidence of harm to E. from exposure to the ongoing conflict created by these differences, and that it was in her best interest to attempt to reduce the tension by granting her primary caretakers authority over matters concerning her upbringing and requiring Father to defer to their authority. The award of sole legal custody to Uncle and Aunt was not an abuse of discretion.

2. Statement of Reasons for the Termination of Legal Custody

Father asserts the trial court erred because it failed to state in its written order its reasons for termination of joint legal custody. Section 3087 provides that if a parent opposes modification or termination of a joint custody order, "the court shall state in its decision the reasons for modification or termination of the joint custody order." (See also section 3082 [upon request of party, court shall state reasons for granting or denying joint custody request].) We note that it was Father's counsel who voluntarily prepared the written order signed by the trial court after the court rendered its oral ruling.

In In re Marriage of Buser (1987) 190 Cal.App.3d 639, 642, the court distinguished the statement of reasons required by section 3082 with the more formal "statement of decision" required by other statutes, explaining: "The statement of reasons was . . . intended . . . to provide parents with the reasons-in plain, everyday English- why the court granted or denied joint custody. In contrast, a statement of decision is a formal legal document containing the factual and legal basis for the court's decision on each principal controverted issue for which a statement is requested."

Section 3087 does not state the court must set forth its reasons in writing. At the hearing on Father's custody petition, the trial court explained at length to Father the reasons why it was awarding sole legal custody to Uncle and Aunt. Thus, the purpose of the statement of reasons requirement was fully satisfied.

Even assuming arguendo section 3087 contemplates written reasons, there was no prejudice. (See In re Jesusa V., supra, 32 Cal.4th at p. 624 [harmless error analysis typically applies when statutory mandate is not followed].) This is not a case involving a failure to comply with a request for a formal statement of decision (see, e.g., In re Marriage of Sellers (2003) 110 Cal.App.4th 1007, 1010-1011 [reversal required for failure to issue requested statement of decision]), nor is this a case where the parties have been deprived of necessary information or meaningful appellate review is impeded (see, e.g., In re Marriage of Hall (2000) 81 Cal.App.4th 313, 318-321 [reversal required for failure to explain reasons in writing or on record]). Because the reasons for the termination of legal custody were orally provided to Father, and Father's counsel prepared the written order without incorporating these reasons, Father has not shown any prejudice to his rights from the absence of written reasons.

B. Supervision Requirement for Visitation 1. No Abuse of Discretion to Require Supervision

Father contends the trial court abused its discretion in imposing the requirement that his visits with E. be supervised. To support this assertion, he contends that there was no evidence that the musical play "Chicago" would be detrimental to E., and that the record showed he was more at ease and E. was less distracted without a supervisor. His arguments focus too narrowly on isolated items of evidence. Considering the record in its entirety, the trial court could reasonably conclude that supervision should be maintained pending further evaluation by the therapists. Numerous observers had reported that Father had deficits in understanding how to parent E. in an age-appropriate manner. Nevertheless, giving Father the benefit of the doubt, E.'s counsel initially recommended lifting the supervision requirement that had been imposed on a temporary basis, and the parties agreed to this recommendation. Shortly after the supervision requirement was lifted, Father took E. to see the adult musical "Chicago." This caused E.'s counsel to switch his recommendation and to suggest reinstatement of the supervision requirement. The trial court could reasonably credit E.'s counsel's conclusion that Father was not taking seriously or not understanding the concerns of Uncle and Aunt and the other professionals about his parenting choices.

The reasonableness of the court's ruling is further supported by the trial court's emphasis that the supervision requirement is intended to be temporary, and its ruling that the therapists could authorize removal of the requirement.

2. No Improper Grant of Authority to Therapists

Father argues it was improper for the court to delegate to the therapists the decision whether to lift the supervision requirement.

Only the court has the power to determine whether visitation should occur, and it may not delegate this power to a third party. (In re James R. (2007) 153 Cal.App.4th 413, 436.) However, the court may properly order that a therapist manage visitation ordered by the court. (See In re Donnovan J. (1997) 58 Cal.App.4th 1474, 1477.) Here, the trial court ordered visitation, and delegated to the therapists the authority to decide whether the visitation should be supervised or unsupervised. This was a permissible delegation of the manner in which the visitation was to be exercised. Further, the court's ruling makes clear that Father has the right to petition the court for further review of the supervision requirement in the event the therapists do not lift it. (See In re Chantal S. (1996) 13 Cal.4th 196, 214.) The court, as well as Uncle and Aunt's counsel, stressed the intended temporary nature of the supervision requirement, and the court explicitly stated that in the event of a conflict on this issue the parties could return to court.

There was no improper delegation of judicial authority.


The order is affirmed. Father to pay his costs on appeal.*fn16


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