Legal Question in Civil Litigation in California

My daughters Mother who has 2 other kids who are not mine (girl age 15, and boy age 13, my daughter is 9yrs) has been sharing a home with her cousin who is approximately the same age as the mother 35-40 years old. The 15year old had reported sexual allegations against the cousin whom CPS confirmed the allegations against him. I have my daughter every weekend from 6pm to Sunday 6pm except for the last weekend of every month. CPS had ordered a safety plan where the cousin was not to be at the home and to stay away from the victim. I had been contacted by CPS whom made me aware of the situation and said if the mother failed to abide by the safety plan that they would side on my behalf if I sought full custody of my daughter to protect her and said i was willing to do so. I had gone to pick up my daughter for my regular weekend pickup and noticed her cousins car was in the driveway. I asked my daughter about this and said he just came during the day and at night he would sleep in his truck behind the Home Depot Parking lot. I had contact CPS and let them know about the situation and they did a follow up and noticed John was at the residence and took the kids away to foster care for failing to abide by the safety plan. CPS had said they tried to contact me but was unable to so they had no choice. Now I am fighting to get full custody of my daughter and fighting the negligence allegations against me for failing to protect my daughter. I have an attorney for this, however can I sue her cousin in small claims court for emotional distress and punitive damages as a result of his misconduct?

Asked on 10/30/12, 8:45 pm

2 Answers from Attorneys

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No. Emotional distress is not what that term might seem to a lay person. It means severe and objectively determinable shock and distress to the system - such as watching your child run over by a car, or systematic ongoing emotional torture. If it has no objective manifestation - generally at least some period of psychological treatment or care, and at a bare minimum some substantial and observable upset to emotional balance, such as chronic sleeplessness, inablity work, or other things that an indifferent observer could see or determine - then there is no case for damages. Without the underlying damages there can also be no punitive damages.

Answered on 10/30/12, 11:30 pm

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