Custody orders are always made in the best interest of a child and once an order is in place, there needs to be a change of circumstances in terms of modifying that order, says Eugene Hyman, retired Superior Court Judge of Santa Clara, California. In the case of Usher, a near-death drowning would be one of those circumstances, says Hyman.

There are two systems in place that can act in this situation, one of which can act more quickly, says Hyman. The abuse and neglect system can take place whether or not there's a family court action and takes preference over all other systems, including the family court.

In this case, child protective services was alerted and the judge had a hearing. The judge decided to leave the present family court orders intact, as he felt there were reasonable efforts made in screening childcare personnel and labelled the incident a freak accident, says Hyman.

Having help that's CPR-trained with PhD's are not the standards of care a judge imposes and the fact that in this case, the person watching the child wasn't CPR-trained was not held against Usher. The judge decided the incident was unpredictable and people acted as reasonably as possible.