The Court Determines Visitation, Not the Child

K was born in October of 2004 and lived with his mother and her boyfriend. K had no contact with his biological father. In fact, according to K’s mother, she and K had had no contact with his father since he was three weeks old, and she did not know where K’s father was.

On December 4, 2013, the Los Angeles County Department of Children and Family Services (DCFS) petitioned the juvenile court to remove K from his mother’s custody and be placed with his maternal aunt. According to DCFS, K’s mother had engaged in violent confrontations with her boyfriend and her mother in front of K. Mother had mental and emotional problems and was not taking her psychotropic medication, but was abusing alcohol and marijuana instead. The father was not at the hearing. The court granted DCFS’s request, and placed K with his maternal aunt.

In February of 2014, DCFS filed a declaration of due diligence showing its attempts to contact K’s father. DCFS searched numerous sources including voter registration records, prison records, military records, the Department of Motor Vehicles, and Lexis/Nexis databases and found seven addresses. DCFS sent notices to K’s father to all seven of those addresses notifying him of the juvenile court hearing. Father failed to attend the hearing, but the court agreed with DCFS that it had properly tried to contact him. At that time, the court declared K a dependent of the court and awarded custody to his maternal aunt. Also, the court did not award reunification services for K’s father, but if the father did contact DCFS, he would be allowed monitored visits.

In August of 2014, a six-month review hearing was held. The judge determined that K should remain with his maternal aunt. At the twelve-month review hearing, the court terminated reunification services for K’s mother and scheduled a hearing for K’s permanent placement.

In August of 2015, the permanent placement hearing was held, and K’s father appeared at the hearing. (DCFS sent his seven addresses notice, so he knew to appear.) Although K’s father had not seen K for almost ten years, he still wanted custody of him (K). The court continued the case, but in October of 2015, the court denied K’s father request for custody. The court noted that it would not be in K’s best interests to live with his father, but someday in the future K may want to know his father. Therefore, the court granted K’s father visitation, but only if K wanted to see him. K’s father appealed.

The Appellate Court agreed with K’s father, sort of. The court was not required to order visitation, but once it did so, it could not delegate the decision of the visits to a child. The court held, “…The power to determine the right and extent of visitation by a noncustodial parent in a dependency case resides with the court and may not be delegated to nonjudicial officials or private parties.”

The Appellate Court sent the case back to the court to determine if visitation would occur, and if so, what that visitation would be.

Categories: Child Custody, Family Law
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