Is a California judge allowed to deny child visitation to a father even if the visitation is supervised. Answer: yes. That’s the message from the Court of Appeal in In re T.M., which was decided last month but certified for publication this week.
In T.M., a seven-year-old boy’s mother had died. Years went by, but eventually the child told authorities that he was scared of the father who had been punching him for the past five years, including “`whoopings'” at times for no reason at all. One time the boy was punched 20 times and hit with a belt for locking the keys in the car; another time, the father cursed at the child and said he was “‘slow and retarded'”.
It gets worse. The father smoked marijuana in front of the minor. The father was convicted of a 2012 misdemeanor domestic violence incident against the father’s new wife, i.e., the boy’s stepmother. When the judge in the criminal case ordered the father to complete a batterer’s treatment program, the father failed to comply.
Social workers interviewed the child, who appeared very nervous and spoke with a trembling voice. One night, the child went to his grandmother’s house, but the father arrived in the middle of the night and banged on the door, demanding the boy’s return. The police were called and ended up handcuffing the father in a police car for three to four hours.
Later, the father told a social worker that because he was going to have other children, the child in question was going to have to change but he — the father — would not be changing. During the actual court hearing, the father repeatedly interrupted the court and used foul and offensive language. The father denied the allegations of the child, and he was supported by the testimony of the stepmother.
Not surprisingly, the court did not believe the father or the stepmother. Also not surprisingly, the court ordered removal of the child from the father. The court further ordered no visitation because it was not currently appropriate.
The father appealed, arguing that there could be a denial of visitation only on a finding of a threat to the minor’s physical safety. The Court of Appeal, however, by a 3-0 vote, held that California law only requires visitation “as frequently as the well-being of the child allows. Accordingly, if visitation is not consistent with the well-being of the child, the juvenile court has the discretion to deny such contact”. In other words, a finding of a threat to the minor’s physical safety is not a prerequisite to a denial of visitation. Therefore, the father’s argument that the child had nothing to worry about because the visitation would be supervised was not relevant.
Although the T.M. case originated in Sacramento, the decision of the Court of Appeal is being on trial judges and attorneys throughout California and may be cited as precedent.