Other Cases Affecting Children

In re Guardianship of Olivia J. (2000) 84 Cal.App.4th 1146 [101 Cal.Rptr.2d 364]. Court of Appeal, First District, Division 1.

The trial court dismissed a petition for guardianship by the former domestic partner of the child's mother.

The appellant was living in the same household as the mother and child for about two years before the relationship between the mother and the appellant ended. The child referred to the appellant as "Mama." The appellant filed a petition for guardianship with the right to visitation. The petition was later amended to allege that parental custody was detrimental to the child. The court granted the appellant's petition for temporary visitation. The mother filed a motion to vacate the temporary visitation order and a motion to dismiss the petition. The court suspended its temporary visitation order. The trial court heard arguments on the motion to dismiss, construed as a motion for judgment on the pleadings. It determined that the appellant, who was not a parent of the child, could not, as a matter of law, establish that parental custody was detrimental to the child in the absence of an allegation of abuse. The trial court relied on the decision in Guardianship of Z.C.W. (1999) 71 Cal.App.4th 524 as holding that the loss of a child's relationship with a nonparent cannot provide a legal basis of detriment when the guardianship is opposed by a parent. The court granted the motion to dismiss. The appellant filed a timely motion to vacate the judgment.

The Court of Appeal reversed the decision of the trial court because the trial court applied the wrong legal standard in requiring a showing of serious abuse or neglect and interpreted a precedent case erroneously. The appellant filed a petition for guardianship under Probate Code section 1510 and alleged that parental custody was detrimental to the child (Fam. Code, § 3041.) The appellant contended on appeal that the trial court had erred by dismissing her petition without giving her an opportunity to prove that parental custody was detrimental to the child.

Probate Code section 1510 provides, in pertinent part, that a person may file a petition for guardianship of the child on behalf of the child. The appellant in this case had standing to file the petition; however, because she is a nonparent, the burden on her was quite high if the court was to grant the petition. The appellant's petition met the pleading requirements of the Probate Code and alleged that parental custody was detrimental to the child under Family Code section 3041.

The trial court found this to be insufficient because the appellant did not allege serious abuse or neglect. The appellant court concluded that, although specific findings of abuse are necessary for the dependency court to remove a child, nothing in Probate Code section 1514(b) (decision to appoint a guardian) or Family Code section 3041 (granting custody to a nonparent over the objections of a parent requires a finding of parental custody as detrimental to the child) requires a showing of evidence of serious abuse, neglect, or abandonment. The appellate court stated, "The preference for parental custody is adequately protected by requiring that the petitioner demonstrate by clear and convincing evidence that parental custody is detrimental to the child, without attempting to enumerate, by judicial gloss on the statutory language, what categories of factual circumstances may or may not be recognized as detrimental to the child." The appellate court found that the trial court had applied the wrong legal standard in this case by requiring a showing of serious abuse, neglect, or abandonment.

The trial court had also found that the psychological harm caused by the loss of a relationship with a nonparent is not, as a matter of law, a basis for finding that parental custody is detrimental to the child. The appellate court , however, concluded that the trial court had erroneously interpreted Guardianship of Z.C.W. (1999) 71 Cal.App.4th 524 as a matter of law. The appellant in this case, unlike the appellant in Z.C.W., was not able to present her case at an evidentiary hearing. The Z.C.W. holding-that the appellant did not show by clear and convincing evidence that parental custody was detrimental to the child-did not support the trial court's dismissal of the petition without a hearing. The appellant in this case should have the opportunity to present relevant evidence to the trial court.

The appellate court cautioned that the decision in this case was limited and it did not express an opinion on the merits of the petition. The appellate court also cautioned that the decision was not an endorsement for use of a guardianship petition as a forum for a nonparent to obtain visitation rights over the objection of the parent.