Monday, August 18, 2003
Court of Appeal Rules: Trial Court May Not Give Children Power to Veto All Visitation
By DAVID WATSON, Staff Writer
A court ordering visitation must set a minimum level of visitation that will actually occur, and may not give children power to veto all visits, this district’s Court of Appeal has ruled.
The court’s Div. Seven said Los Angeles Superior Court Commissioner Marilyn Kading Martinez erred when, in ordering reunification services and visitation for three children with their mother after removing them from her custody, she specified that “if the children refuse a visit, then they shall not be forced to have a visit.” The custody order was based on physical abuse by the children’s stepfather and the mother’s failure to provide adequate care. The ruling was certified for partial publication Thursday.
“[W]hen the court orders visitation, it must also ensure that at least some visitation, at a minimum level determined by the court itself, will in fact occur,” Presiding Justice Dennis M. Perluss wrote.
The power to decide whether any visitation will occur “belongs to the court alone” and cannot be delegated to either the children or social services providers, Perluss explained.
“When the court abdicates its discretion in that regard and permits a third party, whether social worker, therapist or the child, to determine whether any visitation will occur, the court violates the separation of powers doctrine,” the presiding justice declared.
“[B]y failing to mandate any minimum number of monitored visits per month or even to order that some visitation must occur each month, the court’s abstract recognition of [the mother’s] right to visitation is illusory, transforming the children’s ability to refuse ‘a visit’ into the practical ability to forestall any visits at all,” Perluss said.
The presiding justice went on to observe:
“We are not suggesting either that the juvenile court must always specify the frequency or length of visits...or that the court may not direct that the child’s wishes with respect to the timing, length or location of visits be considered....Indeed, the Department [of Children and Family Services] and mental health professionals working with it and with the dependent child may determine when visitation should first occur....However, in fashioning an appropriate visitation order the juvenile court must recognize that any factor that may be considered, even to a ‘limited’ extent, can become decisive (the ‘tipping factor’) in some instances in determining whether visitation will occur, otherwise it is not truly a factor at all.”
“[T]o prevent the child from exercising a de facto veto power, there must be some assurance that, should that occur, another visit will be scheduled and actually take place. The simplest—but, by no means, the only—way to accomplish this would be for the juvenile court to order a minimum number of visits per month....In no event, however, may the child’s wishes be the sole factor in determining whether any visitation takes place, either as a formal matter or, as occurred in the case now before us, by effectively giving the children the power to veto all visits.”
In the unpublished portion of the decision, Peluss said there was sufficient evidence to support the custody ruling and that Martinez acted properly in permitting two of the children to testify in chambers out of the presence of their mother.
Justice Earl Johnson and Los Angeles Superior Court Judge Aurelio Muñoz, sitting on assignment, concurred.
The case is In re S.H., 03 S.O.S. 4488.
Copyright 2003, Metropolitan News Company