Simon
Contra Costa County Social Service Department v. Simon
Opinion
Lead Opinion
Anderson, J.
Johnny Simon appeals from a judgment declaring B. J. B., his alleged natural son, free of his custody and control. Because the trial court expressly refused to make a finding that awarding custody to appellant would be detrimental to the child, we reverse.
*1204 Facts
B. J. B. (B.) was born in October 1978 to Lorraine B. According to the birth certificate his father was Hubert B. (Hubert Sr.), then Lorraine’s husband. Hubert Sr. has maintained at all times that he is B’s natural father. However, appellant claims that he fathered the child while living with Lorraine. Lorraine has apparently made inconsistent statements about B’s paternity.
In January 1979 Lorraine moved into a home for battered women, along with B. and his older brother, Hubert (Hubert Jr.). About a month later she was asked to leave. She entered an alcohol detoxification center and placed the children in protective custody. A dependency petition was filed in Alameda County pursuant to Welfare and Institutions Code section 300, subdivision (a). After the case was transferred to Contra Costa County, both B. and Hubert Jr. were adjudged dependent and were placed in the home of Hubert Sr. In April 1980 a…
Concurrence in Part
Poché, J.
I concur in the reversal of this judgment but write separately to express my profound disagreement with the majority’s analysis of issues which are unnecessary to the decision.
1.
Civil Code Section 4600.
In my view the majority’s limiting interpretation of Civil Code section 4600 is insupportable not only because it runs contrary to unanimous authority, 1 but also because it denies effect to plain statutory language and to deeply engrained legal principles concerning the family.
*1214 Civil Code section 4600, subdivision (a), states in part: “In any proceeding where there is at issue the custody of a minor child, the court may, during the pendency of the proceeding or at any time thereafter, make such order for the custody of the child during minority as may seem necessary or proper.” Subdivision (c) then sets out the following mandate: “Before the court makes any order awarding custody to a person or persons other than a parent, without the consent of the parents, it shall make a finding that an award of custody to a parent would be detrimental to the child and the award to a nonparent is required to serve the best interests of the child.”