Law Offices Of Cathleen E. Norton

Los Angeles Child Custody and Family Law Attorneys

It may seem quite obvious, but a non-custodial parent can’t retain custody of a child they don’t reside with. That proposition is exactly what was attempted by the mother of a child in In re Miguel C., a case recently decided by the Court of Appeal for the First Appellate District.

In that case, the child was removed from the mother’s custody per the petition of the Alameda County Social Services Agency pursuant to Welfare and Institutions Code section 300. The mother argued that removal was not necessary and that a less drastic alternative was available—the Court could allow the father, as the non-offending parent, to “retain” custody pursuant to Welfare and Institutions Code section 361(c)(1). That section states that a court shall “also consider, as a reasonable means to protect the minor, allowing a non-offending parent or guardian to retain physical custody as long as that parent or guardian presents a plan acceptable to the court demonstrating that he or she will be able to protect the child from future harm.

The Appellate Court made clear that this was not applicable where the child did not live with the non-offending parent, as was the case here. It could not order that the father retain what he did not have. The Court went on to state that it could not place the child with the father without first removing the child from the mother.

Many family law cases unfortunately arise or are complicated by the neglect of a child by the mother or father. It’s important to know what the law says can be done to effectuate a change in custody. Whether you are trying to retain custody of your child or gain custody from the custodial parent, utilizing the law properly will ensure your case is seen in the best possible light.

Send your questions to cathleen@cnortonlaw.com