Earlier this month, I wrote about how Family Code section 3064 makes it difficult for courts to address concerns about holiday visitation because the section at issue deals with needing an emergency to make an ex parte order for custody or visitation, and holidays are not emergencies — though understandably important to both parents and children.
But here is one situation where a court will probably do something, even if it’s on an ex parte basis, and that situation is leaving a four year old boy at home alone. That’s what happened in the case of In re Marriage of Slayton & Biggums-Slayton (2001) 86 Cal.App.4th 655.
In Slayton, which is one of the few cases to discuss Family Code section 3064, the mother was given custody in the late 1990s of the parties’ son, who was born in January, 1995. On December 13, 1999, when the child was just months away from turning five, the police went to serve an eviction notice and found the boy alone at the mother’s residence. The cops took the child to Child Protective Services (“CPS”), and CPS gave the boy to the father, who subsequently got an emergency order from the trial court giving him custody.
As stated in the earlier blog, section 3064 “authorizes a court to make an ex parte order granting or modifying custody where ‘there has been a showing of immediate harm to the child’.” (Slayton, supra, at p. 656.) The Slayton court noted that there were no cases explaining what “immediate harm to the child” meant. (Ibid.) However, based on a review of California law, the Court of Appeal held that the “failure to provide adequate supervision” constitutes “immediate harm” for purposes of section 3064. (Id. at p. 657.) In fact, as a result of the December 13, incident, the mother, who had actually been arrested, plead no contest to the criminal charge of child endangerment. (Id. at p. 658.)
Nothing in this case, which is now 16 years old, says how old a child has to be to be left alone. But two thoughts come to mind: one, when you are going through a child custody matter –or have been through one– be careful what you say or do. At least one person is probably watching. Second, regardless of what your parental philosophy may be (i.e., reasonable people can disagree whether a 12-year-old can stay alone after school in her or his own house), leaving a four-year-old at home alone is not debatable: it’s dangerous for the child and it’s dangerous with respect to the maintenance of custody.
So don’t look for a last minute holiday present from the court with respect to extra vacation time, but don’t expect the judge to tolerate a complete abandonment of parental responsibility either.