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Name: In re Nicholas H.
Case #: A100434
Court: CA Court of Appeal
District 1 DCA
Division: 2
Opinion Date: 09/26/2003
Subsequent History: None

In Nicholas I, the California Supreme Court held that the fact that Thomas, Nicholas’s presumed father, was not Nicholas’s biological father, did not rebut the presumption of fatherhood which arose in this case. The Court transferred back the case to the superior court with directions to reconsider in light of their opinion. The superior court found that it was in Nicholas’s best interest to remain with Thomas, ordered physical custody to Thomas, and dismissed dependency jurisdiction. Exit orders included visitation for Kimberly, the mother, and an order which prohibited the parties from discussing with Nicholas that Thomas was not his biological father until they attended mediation to discuss it. In this appeal, Kimberly contended that the juvenile court lacked jurisdiction to dismiss the case because she had appeals pending in two other cases involving this minor. The appellate court rejected that argument, finding that the appeals did not stay the juvenile court proceedings. Kimberly also argued that the court applied the wrong standard when it granted Thomas sole custody of Nicholas. She argued that the court was required to return Nicholas to her care unless doing so would create a substantial risk of detriment to Nicholas. The appellate court disagreed, holding that although the risk of detriment assessment was a relevant consideration, the court was required to determine what was in the best interests of the child. Finally, Kimberly contended that the juvenile court erred by restraining her from telling Nicholas that Thomas was not his biological father. The appellate court found that argument waived, since it was not raised below. Further, it rejected the contention on the merits because the order was a valid collateral order reasonably related to custody and visitation issues. Further, the mediation requirement was necessary to protect Nicholas from his parents’ ongoing dispute.