Metropolitan News-Enterprise


Thursday, June 11, 2009


Page 1


C.A. Rejects Strict Scrutiny Standard in Custody Disputes


By STEVEN M. ELLIS, Staff Writer


A trial court did not err by failing to apply the strict scrutiny standard to resolve a custody-related dispute between two parents who shared joint legal custody of their minor son, the Fourth District Court of Appeal ruled yesterday.

Div. One held that a 2000 ruling by the U.S. Supreme Court that parents have a constitutional right to make decisions concerning the care, custody, and control of their children does not compel courts to apply a substantive due process analysis in resolving disputes between parents.

The Supreme Court in Troxel v. Granville, 530 U.S. 57, concluded in a plurality opinion by since-retired Justice Sandra Day O’Connor that a Washington law allowing grandparents and others to petition state courts for child visitation rights over parental objections unconstitutionally infringed a mother’s fundamental right to make decisions on rearing her children.

In 2008, a man identified as Enrique M. filed an order to show cause before the San Diego Superior Court requesting that his son be ordered to enroll in a particular middle school over the objections of the child’s mother, who sought to enroll the child in a different school.

However, San Diego Superior Court Judge Gonzalo Curiel denied the request. He noted the closer proximity of the latter school to the mother’s residence, her responsibility for taking the child to school on seven of the 10 school days in a two-week period, and that the father’s proposal would entail placement in a school approximately 15 miles from the child’s primary residence.

The judge also pointed out that that the mother’s chosen school “appear[ed] to have good scores;” that the child had resided in the same neighborhood for over eight years, allowing him to attend a single school that fed into the mother’s chosen school with many of his current classmates; and that the father had changed residences numerous times in the preceding years.

On appeal, the father contended that Curiel erred in failing to apply strict scrutiny because the decision had the potential to burden his fundamental right to parent his child, but Justice Cynthia Aaron wrote that the absence of any supporting authority was fatal to Enrique’s claim.

She explained:

“Enrique has not cited, and our own independent research has not uncovered, any California case in which a court has concluded that a trial court must apply the strict scrutiny standard in resolving a custody, or custody related, dispute between the parents of a minor child. This is so despite the fact that California appellate courts, including the California Supreme Court, have routinely considered such disputes.

“Courts in these cases have uniformly stated that, pursuant to applicable Family Code provisions, a trial court is to resolve such disputes in the best interests of the child.”

Presiding Justice Judith McConnell and Justice Terry B. O’Rourke joined Aaron in her opinion.

In an unpublished portion of the opinion, Aaron also wrote that Curiel did not err in declining to consider hearsay evidence of the child’s “emotional suffering” and alleged desire to attend the father’s chosen school.

She further rejected Enrique’s contention that the trial court erred in denying his request to change the child’s hyphenated surname by switching the sequence to place the father’s surname first.

The case is Enrique M. v. Angelina V., 09 S.O.S. 3548.


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