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Custody, Visitation and Allegations of Sexual Abuse in California Divorces – In re Marriage of Harris

While they don’t always have to be, California divorce cases are often hard-fought affairs in which tensions run very high. The state’s Fourth District Court of Appeals recently took on one such case, in which one spouse accused the other of sexually abusing their child.

playground-1435367-mHusband and Wife were in the midst of divorce proceedings in 2007 when Wife sought sole custody of their five-year-old daughter with no visitation rights for Husband. She claimed that Husband had sexually abused the child, an allegation that Husband denied. Following an evidentiary hearing on the issue, a judge issued an order finding that “the preponderance of the evidence points to the father as the perpetrator of sexual abuse on the child.” As a result, the judge awarded Wife full custody with no visitation for Husband. The court said it would potentially consider allowing monitored visitation in the future, if Husband could show that it was in Daughter’s best interest. A second judge later issued a restraining order against Husband and made the custody/visitation order final.

In the years that followed, Husband sought to modify the order to allow him monitored visitation rights. He continued to deny the molestation accusations and said he should be allowed to undergo therapy with the child in order to eventually obtain “reunification leading up to full visitation.” The trial court ultimately allowed Husband to undergo “reunification therapy” with Daughter and to have monitored visitation time with the child, which the court said could be ramped up over time at the therapist’s discretion.

In reaching the decision, the court noted that Wife had engaged in a “sustained campaign” to separate Husband from Daughter. In fact, the judge temporarily awarded legal custody over Daughter to her court-appointed attorney, saying that Wife’s custody of the child had placed Daughter at “immediate risk.” The court said Wife had created a “toxic” environment and had urged Daughter to “act out” during reunification therapy.

The court also noted that a child services evaluator had found the sexual abuse claims unsubstantiated a few years earlier. The previous rulings and restraining order, the judge noted, were based on the conclusion of one expert that the abuse had happened. Nevertheless, the court said it found “a strong inference Wife either manufactures the symptoms, or incites the child to act out” in order to thwart the reunification process.

Affirming the temporary custody and reunification orders on appeal, the Fourth District said the trial court didn’t abuse its discretion in issuing the orders. First, the Court noted that the order giving temporary custody to Daughter’s attorney came earlier in the case and that Wife didn’t appeal it at the time. As a result, the Court said it couldn’t later be challenged on appeal.

The Court further found that the reunification order modified Husband’s visitation rights but didn’t change the custody status. As a result, the judge who issued it only had to find that the reunification effort was in Daughter’s best interests, not that there had been some change in circumstances of the nature necessary to justify custody modification.

While the allegations of abuse at issue in this case may be out of the ordinary, a wide variety of child custody and visitation issues often arise in California divorce cases. If you’re considering seeking a divorce in California, contact San Jose divorce lawyer John S. Yohanan. With more than 30 years of experience, Mr. Yohanan is an accomplished family law attorney who has helped a number of clients resolve adult child custody, visitation, and other issues on optimal terms. Call our office at (408) 297-0700 or contact us online to schedule a consultation.

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