August 23, 2013 By Paul Wallin

In a recent decision, In re John M., a California Appellate Court found that a father’s history of domestic violence, directed only at the child’s mother, was sufficient for the dependency court to determine that the history of abuse “presented a very real risk to the child’s physical and emotional health.” This decision essentially states that your child could be taken away from you and be declared a ward of the Court if you and your spouse have a history of domestic violence in your home. It does not matter if the history of domestic violence was in the presence of or directed towards your child. If your child has been removed from your home, or if you are in any stage of the child dependency process, the child dependency attorneys at Wallin & Klarich can help you to have your child returned to your care as soon as possible.

A History of Domestic Violence may be Sufficient to Deny Custody

child dependency attorney
If you are facing a child dependency issue, it is important you hire an experienced child dependency attorney.

In the case of In re John M., a child, John, was removed from his mother’s care due to his mother’s 25-year history of drug abuse, her untreated bi-polar disorder, and her current daily use of heroin and alcohol. At the time the minor was placed in a foster home, both the mother and father had custody of John. However, John’s father was in prison for domestic violence against John’s mother. The Department of Children and Family Services (DCFS) indicated in its petition to the court that the father had a history of drug use and that the mother and father had a history of engaging in verbal altercations.

DCFS presented a detention report that indicated that the father was in prison for a physical altercation with the mother, where the mother sustained physical injuries to her face and head. The minor was not present at the time of the altercation and had no idea that the injuries to his mother were caused by his father. Further, the minor did not know that his parents abused drugs or alcohol and later indicated that his parents were “very, very, super nice.”

After the father was released from prison, in an attempt to obtain custody of his son, he appeared at a court hearing and argued that the history of domestic violence towards John’s mother was a “one-time occurrence.” He further argued that since his son was never the subject of any domestic violence, there was no immediate threat of physical or emotional harm to the minor. The court ruled that the father’s domestic violence toward the mother was a sufficient basis for denying the father custody of his son.

California Welfare and Institutions Code Sections 300(b) and 361.2

The dependency court looked to two very important California Welfare and Institutions Code Sections, 300(b) and 361.2, in determining that the father should be denied custody.

Code section 300(b) states: “Any child who has suffered, or there is a substantial risk that the child will suffer, serious physical harm or illness as a result of the failure or inability of his parent to adequately supervise or protect the child,” may be deemed a dependent child of the court.
Code section 361.2 provides that the court “shall first determine whether there is a parent of the child, with whom the child is not residing at the time of the removal of the child from the other parent’s care.” If there is another parent, the court should place the child in the custody of that parent, unless placement would be detrimental to the child.

The court concluded that section 300(b) applied to the father because there was a substantial risk that his son would suffer physical or emotional harm due to the father’s past domestic violence against the mother. While the father had not yet caused physical harm to the minor, there is nothing protecting him from any future violent outbursts that the father might have. It did not matter that the incidents of domestic violence occurred a couple of years in the past and that the father claimed they only happened once.

With regard to section 361.2, the father attempted to argue that the parent who is not residing with the child at the time of removal of the child does not have to be a “non-offending” parent. This means that despite the fact that John was removed was partly due to the father’s domestic violence towards the mother, the father believed this was irrelevant in determining custody. The Appellate Court disagreed. They indicated that a parent who falls under section 361.2 must be a “non-offending” parent. Since the father was one of the reasons for the detention of the minor, he was considered an “offending parent,” and could not be considered for custody of his son.

Thus, the father’s history of domestic violence against the mother prevented him from obtaining custody of John.

Speak to the Child Dependency Attorneys at Wallin & Klarich

If your child has been removed from your home and you are facing a child dependency case, the child dependency attorneys at Wallin & Klarich can guide you through this difficult time. With over 30 years of experience handling child dependency matters, the attorneys at Wallin & Klarich have the knowledge and experience you need to obtain the best possible result in your case.

We have offices in Orange County, Los Angeles, San Diego, Riverside, San Bernardino, Ventura, Victorville, West Covina, Torrance and Sherman Oaks. Call Wallin & Klarich today at (888) 749-7428. We will get through this together.

Leave a comment

Practice area

  • Contact Us Now

    If you want a caring and aggressive family law firm fighting for your legal rights, now is the time to contact us.

  • This field is for validation purposes and should be left unchanged.


Latest Posts

SCHEDULE YOUR free consultation
  • This field is for validation purposes and should be left unchanged.