California custody determinations often turn on the well being of the child, leaving courts to determine whether a particular living situation is suitable for a child’s physical, mental and emotional security and development. Recently, the state’s First District Court of Appeals took on a unique version of this question when it was asked to decide whether living with a grandmother and her boyfriend who are practicing nudists is detrimental to children. At least in this case, the answer was “no.”
In re Marriage of Meyer involves spouses Wendy and David, who were married in 2000, and their two daughters. The kids were ages ten and four when David, who had become estranged from his wife, filed a petition seeking sole legal and physical custody, with visiting rights for Wendy, in November 2010. One month later, Wendy took the girls out of school and moved with them from the family’s home in Castro Valley to her mother’s apartment in Fairfield.
At a hearing in March 2011, the couple gave differing versions of two events involving alleged physical abuse. Wendy asserted that David was the aggressor in two physical confrontations, which took place in 2002 and 2008, as well as during a number of other incidents. An Alameda County police officer backed up this version of the events, testifying that he arrested David for the 2008 incident after arriving at the scene and interviewing both spouses as well as their oldest daughter. According to the officer, Wendy had injuries consistent with domestic violence and the daughter essentially corroborated her version of the events.
David, on the other hand, argued that Wendy was the aggressor on both occasions and that he simply tried to defend himself from her attacks. Further, according to David, the living situation in Fairfield was detrimental to the girls because Wendy’s mother and her boyfriend were nudists and lived in “Section 8” public housing in a bad neighborhood. He also argued that the girls had been harmed by being uprooted from their school and social circles and that he did not get to spend as much time with them following the move to Fairfield.
The trial court awarded Wendy full legal and physical custody of the children with David having weekly visits and phone calls. The court said there was no evidence that the girls’ current living arrangement was “anything but wholesome or presented any type of danger.”
The First District upheld the award on appeal. Where it is determined that one spouse has committed domestic violence on the other, there is a presumption that it would not be in the children’s best interest for the offending spouse be granted custody. While a spouse may rebut the presumption, a trial court retains discretion to make the ultimate custody determination. An appellate court will not overturn this decision unless it is “arbitrary, capricious or patently absurd.”
Here, the court said there was substantial evidence to support the trial court’s decision, including its finding that the Fairfield living arrangement was perfectly suitable. “We agree that David has not demonstrated any nexus between the evidence that Wendy’s mother and her boyfriend may practice nudity, and suitability of the girls’ living arrangements,” the court observed.
I suspect that the court’s decision was not in the best interest of the children, and that the alleged violence that underpinned the court’s decision to limit the kids time with their father was probably not the kind of violence that would justify a decision of this sort. But sadly, courts seem unable often to really understand the nature of the relationship between the parents and allegations of violence, even if remote and often trivial, result in an automatic decision that is damaging to the alleged abuser and his or her relationship with the children, and of course also harmful to the children and even the other parent, even if they don’t realize it.
It may not be possible in all circumstances, but a couple considering divorce or separation and related child custody issues can often avoid protracted and acrimonious litigation with alternatives such as mediation and collaborative divorce. With offices throughout the region, Bay Area divorce lawyer Lorna Jaynes provides innovative legal tools to resolve family law disputes.
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