H and W divorced. W moved with their two children to Washington State and lived with Raymond Caporale. A week later James, a two-year-old, died from internal injuries and multiple bruises on the head and body. The remaining child, Tracy was placed in protective custody, and Caporale was charged with second-degree murder but was acquitted with a finding that the evidence was not sufficient. H then moved to Washington and remarried. H then moved back to California and married Caporale, and the little girl remained in foster care. H then sued W for custody. During that trial, the testimony of the foster mother was admitted relating to how the five-year-old girl blamed Caporale for the death of her brother and how the child made those statements spontaneously. The trial court awarded H custody, and W appealed.

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