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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 In the unpublished portion of this opinion, we reject these challenges.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 ...

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