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Fred Silberberg

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Sheen Custody: Maybe Neither Parent Should Have the Kids?

Posted: 03/17/11 09:39 PM ET

It seems the public can't get enough of Charlie Sheen these days. Every day seems to be another media interview, re-publication of alleged text messages, or re-publication of tweets that Charlie has supposedly sent out. It is almost as though Charlie, having attacked CBS and those associated with his long running and highly successful sitcom "Two and a Half Men", has used the dispute to promote himself, and his "lifestyle" in a rather odd way. While one could speculate that there are any number of causes to Sheen's latest public ramblings, the problems now seem to have become more personal in nature. Yesterday, Sheen's estranged wife, Brooke Mueller, petitioned the family law court for an order granting her sole custody of the couples' two year old twin boys. Last week, the order was effectuated with the boys being removed from Sheen's home and placed with Mueller.

However, there is more to the story. The custody order was based, in part, upon a threat that Mueller alleges Sheen made toward her, coupled with Mueller's concern over the environment in Sheen's home that they boys are exposed to. Family law judges are supposed to protect what is commonly referred to as the "best interests" of the children. In this case, however, there is an unusual twist: it appears the Mueller herself isn't exactly in the best shape herself to parent the children. Mueller's lawyer admitted to the court yesterday that she is currently in rehab, and that she, herself, will only see the children for four hours per day. Her mother is going to care for the children while they are in Mueller's exclusive custody.

This raises an interesting question from a Family Law Court's point of view. We have two children who are only two years old. They have now been removed from their father's custody and placed in their mother's custody, but their mother is not actually around to care for them because she, herself, is in rehabilitation. As a result, the maternal grandmother is now caring for the children. Is this consistent with the children's best interest? And, in this never-ending saga, what do we know, if anything, about the maternal grandmother and her fitness to parent these children?

"Best interests" is a term we are all familiar with. It is the somewhat nebulous concept that we hear over and over again. In determining what is in a child's best interests, the court is guided by California Family Code Section 3011 which states that the court is to consider the "health, safety, and welfare of the child". The court is also to consider "any history of abuse by one parent or any other person seeking custody against any related children, the other parent, or the spouse, cohabitant or person with whom that party is involved in a dating relationship".

The allegation made by Mueller is certainly a serious one and the court should have entertained it as such. As we know, it is not the first time such an allegation has surfaced in regard to this particular relationship. However, the disclosure that Mueller herself is in rehabilitation raises the question of whether either one of these individuals are really appropriate to parent these very young children. In granting custody to Mueller, it appears that the court actually granted custody to her mother, someone we know little, if anything about. California allows for grandparent visitation, but typically it is the grandparent who comes forward and asks for it. This gives the court an opportunity to do some inquiry into whether the visitation is appropriate. Here, what we have occurring is that the grandmother receives custody by virtue of the fact that her daughter is not available to care for her children and her son-in-law has been restrained from having custody.

If neither parent is fit to parent the children, the law provides that the state may seek custody of the children and place them in foster care. It is a sad fact that most of the time when this occurs, it is in a family where there is little in the way of financial means. However, the legal standard for making this determination again, is the children's best interests. While no one seems to know for certain exactly what it is that is causing Sheen to act the way he has been, it would appear that his behavior is so outlandish at this point that his judgment when it comes to parenting the children is impaired. At the same time, with Mueller herself essentially unavailable other than four hours a day, it appears that neither parent may be appropriate. If this saga continues, it just may be that these children end up dependents of the State. It is sad enough that in this situation, we have two-year old twins who are now the subject of a very public dispute between two impaired parents. It would be even more of a tragedy if these parents let this situation get so out of control that the children end up in the custody of unrelated parties.

 

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