One of the biggest issues that comes up in divorce cases among spouses with children is what happens to the kids. In a recent decision, California’s Second District Court of Appeals explained how judges decide matters like custody and visitation rights.
Husband and Wife separated in 2011 after roughly six years of marriage, during which the couple had a son. Wife became seriously ill during the course of the marriage after contracting swine flu, which landed her in the hospital in a coma. The illness permanently damaged her lungs and forced her to have several toes amputated as a result of poor oxygen flow. She was given high doses of narcotics, according to the Court, during this time and continued to take some of the drugs along with alcohol after leaving the hospital and during the couple’s separation. “At the time of trial, Sharif testified she was taking approximately 10 different medications on a regular basis,” the Court said.
Following a one-day bench trial in March 2013, a trial judge granted Husband’s petition to dissolve the marriage. The judge also awarded Husband full physical custody of the child, while allowing Mother to visit the boy for two hours each week.
Affirming the decision on appeal, the Second District said the trial judge didn’t err in awarding custody of the child to Husband and limiting Wife’s visitation rights. “Under California’s statutory scheme governing child custody and visitation determinations, the overarching concern is the best interest of the child,” the appeals court explained. “The court and the family have the widest discretion to choose a parenting plan that is in the best interest of the child,” it added.
Here, the Court said there was sufficient evidence to show that the custody determination was in the child’s best interest. At the top of the list, according to the Court was evidence showing that Wife “engaged in habitual and continual abuse of prescribed medications and alcohol.” The Court also said there was evidence showing that Wife had abused the child and, at times, put the child at danger because of her inattentiveness. Both Wife’s mother and her current roommate testified at the hearing that Wife tended to become angry and violent when she was under the influence. In addition, Wife’s mother testified that Wife at times left the child unattended or fell asleep when she was supposed to be watching the boy.
Although Wife challenged these witnesses’ credibility, the Court said decisions weighing credibility are made at trial. “[A]n appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge on these issues,” the Court concluded.
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 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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