Superior Court for the State of California in and for the County of Orange

In re the Guardianship of:

Sydney Brooke Simpson

Justin Ryan Simpson

Case No. A 174254

FINDINGS AND ORDER

The Court having considered the evidence produced at hearing, the matter having been submitted on arguments of counsel, the Court enters the following orders on Orenthal James Simpson's petition to terminate the guardianship over minors Sydney Brook Simpson and Justin Ryan Simpson:

The petition is GRANTED. The guardianship over the minors is terminated. The Court finds that the respondent guardians Lou and Juditha Brown have failed to demonstrate by clear and convincing evidence that custody of the minors by their father would be clearly detrimental to their well being. The Court orders grandparent visitation with the minors, finding that there is an intact, stable, bonded, healthy relationship between the minors and their maternal grandparents and that regular visitation is in the minors' best interests.

The Proceedings:

The minors, Sydney Brooke Simpson DOB 10/17/85 and Justin Ryan Brown DOB 8/6/88, are the biological children of Orenthal James Simpson and Nicole Brown Simpson. On July, 27, 1994, just weeks after the death of their mother and while their father was incarcerated, the minors were made the subject of a voluntary guardianship with maternal grandparents, Lou and Juditha Brown. On August 31, 1994, while still incarcerated, Simpson nominated the Browns as guardians ``until such time as (he was) able to resume his legal and physical custody of said minor children.'' The parties further agreed that Simpson's release from incarceration would trigger his right to seek termination of the voluntary guardianship.

After 17 months, Simpson was released. After a brief transitional period, when it became clear that the parties would not come to a mutually agreeable arrangement for the children's custody, Simpson filed a formal petition for termination of the guardianship. Within a month, in January of 1995 the parties stipulated to the appointment of a mutually agreed upon attorney to act as counsel for the minors.

For a period of approximately seven months, while the children remained with the Browns and had regularly recurring visitation with their father, the attorney for the minors conducted her investigation and consulted with psychiatric and psychological experts. After consulting with the parties, their extended family members, trusted friends and neighbors, the children's therapist and after meeting with the children, the children's attorney made a formal custody recommendation to the parties.

Following this, the parties were unable to come to a mutually agreeable resolution of the custody dispute and in the summer of 1996, the matter returned to court where, over the course of 10 trial days, evidence was taken before a probate commissioner. On September 17, 1996 those hearings terminated without a voluntary resolution of the matter.

This Court was subsequently assigned the case for trial, which commenced on November 12. At trial the Court took judicial notice of all of the testimony and evidence from the prior 10 days of hearings. At trial, this Court heard 14 additional days of testimony and argument. The matter was submitted on December 11, 1996.

The Trial Evidence:

At trial, the Court had the benefit of testimony given by every significant adult in the children's lives, including statements by their mother before her death. In addition, the Court heard the expert testimony of the children's therapist of two years. The therapist's clinical observations and assessments were also shared freely and with the consent of the parties with the child psychological and psychiatric expert witnesses for all parties,including the court-appointed experts under Section 730 Evidence Code. The Court then heard the evaluations and opinions of these experts.

The Court also heard the testimony and received physical evidence offered on the subject of several instances of domestic violence allegedly committed by petitioner Simpson against his then wife and later ex-wife, Nicole Brown Simpson. The Court heard expert testimony on the profile of a batterer and risk factors relevant to children who are effected, directly or indirectly, by battering conduct.

The Legal Standard:

The petition before the Court seeks to terminate the existing guardianship with the grandparents, so as to restore the minors to their father's custody. Family Law Section 3041 governs child custody where a non-parent seeks to retain custody. It provides that ``(b)efore making an order granting custody to a person or persons other than a parent... the court shall make a finding that granting custody to a parent would be detrimental to the child...''

The Courts have explained that it is the ``occasional'' or ``rare'' case where custody is taken away and that a non-parent should be awarded custody only in ``unusual and extreme cases''. See, In re B.G. (1974) 11 C.3d 679, 698; In re Guardianship of Marino (1973) 30 Cal.App.3d 952.

Therefore, a custodial placement away from the parent must be ``essential to avert harm to the child.'' In re Rodrigo (1990) 225 Cal.App.3d 1179, 1185. As explained by the California Supreme Court in In re B.G., ``(t)he intent of the Legislature is that the Court consider parental custody to be highly preferable. Parental custody must be clearly detrimental to the child before custody can be awarded to a nonparent.'' Id. At 698. The typical reasons children have been removed from parental custody are absence, inability to provide a suitable home and necessities of life, neglect, cruelty, depravity or physical abuse. See, In re B.G., supra.

At trial, the non-parent has burden of proving detriment by ``clear and convincing'' evidence. Guardianship of Stephen G.(1995) 40 Cal.App.4th 1418, 1423-25. In the context of taking away a parent's full custody of his/her child ``clear and convincing'' evidence has been described as nothing less than evidence that is ``so clear as to leave no substantial doubt. It must be sufficiently strong to command the unhesitating assent of every reasonable mind.'' In re David C. (1984) 152 Cal.App.3d 1189, 1208.

The Law Applied to the Facts:

It is undisputed that, up until 1994, for the majority of their lives, the children resided with Simpson at the Rockingham residence. Even after the 1992 divorce, the kids are reported to have occupied the Rockingham residence as their primary home with their mother during a portion of 1994. (UCCJA Declaration of Louis H. Brown, 7/27/94; Tr. Exh. 3P). During the period of separation from Nicole, shared joint legal custody and had open access to the children at all times of the week. Simpson saw the children on a regular basis, from his residence, only minutes away from their mother's residence. This frequent contact was foreclosed during his 17 months of incarceration. However, Simpson talked to the children on the average, twice weekly, and reunited with them within 24 hours of release from jail.

From this history with their father, the children share a relationship with their father that appears to be strong, positive, and healthy, with powerful psychological bonding. All experts who had the benefit of analyzing the children with all of their significant adults, came to the same conclusion on this point.

At trial, the Browns addressed their burden by bringing evidence of domestic violence allegedly committed by Simpson against Nicole Brown Simpson. The Browns asked this Court to consider the mandate of Family Code Section 3011(b) which requires the Court in making a best interests custody determination to consider ``(a)ny history of abuse by one parent against the child or against the other parent.''

It is unclear whether Section 3011 strictly applies to the case at bar, where a threshold determination of detriment must be made. However, this Court has accepted the position taken by the Browns and their expert witnesses that a pattern of physically and emotionally abusive behavior directed by one parent against the other can be detrimental to the development of healthy children, even if the children were ``not the direct targets of the abuse''. See, Heck v. Reed (1995) 529 N.W.2d 155,162; In re Marriage of Brainard (1994) 523 N.W.2d 611, 615. For this reason, the National Council of Juvenile and Family Court Judges has adopted a provision that recommends that the court consider the issue of family violence whenever a child custody matter is being considered. National Council of Juvenile and Family Court Judges, Family Violence Project, Family Violence: Improving Court Practice, 41 Juvenile and Family Court Journal, 19-20 (1990)

In applying these principles to this case, psychological testing, clinical observations and review of Simpson's history with the children does not yield a picture of a man who has in the past, or is likely in the future to lose control of himself in such a manner as to emotionally or physically harm his two young children.

Much discussion at trial centered on the issue of whether Simpson fits the profile of a ``batterer'' and whether he has character flaws likely to endanger the children's physical or emotional well being, This Court heard evidence spanning the entire period during which Nicole and O.J. Simpson were parents. This included evidence of verbal and physical abuse in the relationship. The Court finds that the relationship reached a fearful crescendo on January 1, 1989, when Simpson was arrested and charged with domestic violence. Although Simpson has admitted fault in the incident resulting in injuries to Nicole, the Court does not find his admissions to be entirely revealing. In this regard, the Court finds to be true testimony concerning slapping incidents which occurred on at least three separate occasions in the mid-80s, leading up to the New Years 1989 incident. Other testimony of sightings of puffiness on Nicole's face or bruises on occasions after 1989 is not sufficiently clear that the Court can tie those observations to any domestic violence. These sightings are not supported by testimony of close family members of Nicole who saw her on a regular basis during the period 1989-1994 and saw no signs of physical trauma.

Likewise, Nicole's statements to dispatch and police officers at the October 1993 incident, that violence had happened in the past, could easily refer to the mid 80s to 1989 period which the Court has found to be true. As to whether violence existed in the Brown-Simpson relationship after that period, the record is less clear. In a surreptitiously recorded police interview with Nicole at the October 1993 incident, she stated that she had not been beaten in four years. This is consistent with other evidence indicating that the 1989 incident was the last time. At that time the children were 5 months old and 3-and-a-half years old.

Since evidence of risk or harm to the children can be difficult to ascertain the absence of evidence that they were ever exposed to domestic violence, the Court has looked for guidance in the evaluations of the child psychiatric and psychological witnesses who have investigated the children for this case. The Court, in considering the extensive documentation of two year psychological treatment history of Sydney and Justin agrees with the findings of the expert evaluators, that there is no clinical or psychological evidence that Simpson has ever emotionally or psychologically abused the children in or out of the context of any battering relationship. It is also the finding of this Court that Simpson has never physically abused the children. Some of the most compelling evidence on this vital point comes from the undisputed observations of experts and eye witnesses alike, that the kids exhibit no covert signs of fear or intimidation around their father and that they express affection for him are comforted in his presence.

As evidence of the children's lack of fear of their father, at least one child has expressed an unequivocal preference to be returned to the immediate custody of father. The other child has declined to state a preference to the court-appointed psychologist, but has stated in positive tones, the strong bonds that child has with father's neighborhood and the child's friends. The experts have agreed that strong peer relationship are a key factor in aiding a child recovering from losses. The children's comfort level with their father is further revealed in their willingness to chide and tease him and even challenge him, without fear of inappropriate consequences.

The Civil ``Wrongful Death'' Case:

Inherent in this case, has been the suggestion by some parties, that evidence or future verdicts given in the concurrent civil proceeding against Simpson be considered by this Court. It is suggested that the subject matter of the case involves issues of Simpson's conduct that may be pertinent to the minor's interests herein. As to evidence, this Court has in fact heard some of the same witnesses who have testified on identical subjects in the civil trial. In some cases those dual testimonies have taken place within 24 hours of each other. The Court has considered such testimony as was received in the custody trail. The Court did not receive any evidence in the custody trial concerning allegations of murder by Simpson. That being the case, it would be improper to speculate as to the effect that such evidence would have on the ultimate result in the custody case.

However, during the custody trial, the parties and Court contemplated the effect if any, of the civil case verdicts, should the custody case have been delayed. The Court's research has indicated that any verdict rendered by the civil jury would not be binding in the custody proceeding for a number of reasons. First, the civil burden of preponderance of the evidence is a lessor burden of proof than that in the custody case, which requires clear and convincing evidence.

Further, even assuming that one could identify identical parties or party representatives in the two cases, and assuming a jury verdict were returned, neither the doctrine of res judicata or the related doctrine of collateral estoppel would operate until the civil judgment is final. Witkin, California Procedure, Volume 7, Section 194(a) (1985). Appeals would take years. Thus, without actually hearing the evidence produced in another proceeding, this Court is unable to utilize any procedural device to import the civil case evidence into the custody case determination.

This raises the issue of whether this Court should have granted a mid-trial request by respondents that this Court do whatever has to be done procedurally, to allow the homicide case to be put on in the custody trial. This request came weeks after the respondents had submitted a witness list of 42 individuals and an exhibit book, none of which contained any of the homicide witnesses or evidence. The request came after all counsel has completed trial preparation, submitted witness lists and after all of the appointed and retained experts had completed their evaluations and submitted their results.

The request was denied by the Court as untimely. The Court concluded that after 11 months of pretrial delay and in consideration of the considerable risk to the children of further damaging publicity that would accompany an unprecedented third ``homicide trial'' of Mr. Simpson, that terminating the custody case and continuing it indefinitely so that this matter could be re-tooled into a homicide trial, would be not in the best interest of the children.

Grandparent Visitation:

All experts who have considered the relationships of these children with the Browns, have agreed that it is in the children's's best interests to have continuing and meaningful periods of time with the Browns and the extended family connected with the children, including their aunts, cousins and neighborhood friends in Orange County. Mr. Simpson has also taken this position. Under Family Code Section 3102, when a parent is deceased, the Court has the power to grant reasonable visitation to grandparents, if it would be in the best interest of the children. This Court has so found. Accordingly, the Court orders continuing visitation between the children and the Browns. The Court concurs with the recommendation of the Court's expert evaluators, that there be periodic weekend visits, coupled with some splitting of school holiday and vacation periods. The parties shall meet and confer as soon as possible, through a mutually trusted intermediary, to design a specific visitation plan for weekend, holiday and vacation arrangements for the benefit of the children. The Court will retain jurisdiction over visitation.

Statement of Decision

The Clerk is ordered to serve a copy of this order upon the parties. Pursuant to Rule 232(a) of the California Rules of Court, this decision shall be the statement of decision, unless within ten days any party files further requests.

SO ORDERED: this 20th Day of December, 1996

Nancy Wieben Stock, Judge