Does Your English Count?
Does your ability to speak English affect your right to child custody or visitation. No, says the California Court of Appeal in a recent San Diego family law case. In this case, entitled S.Y. v. Superior Court, the appeals court ruled 3-0 that the trial judge was wrong to rely on a father’s ability to speak English when it granted him visitation.
In S.Y., the trial judge ruled that the dad (“Omar”) had been domestically violent towards the mom (i.e., S.Y.) on August 29, 2015. The court was therefore forced to apply the presumption under Family Code section 3044 that an award of sole or joint legal custody to the father would not be in the best interest of the one child that the parties had together. In other words, Family Code section 3044 requires a court, upon a finding that domestic violence has occurred between the two parties within the previous five years, to make presumptions against the person who was violent, both as to legal custody and physical custody, that such custody would not be in the child’s best interest. (Section 3044 applies even if no domestic violence restraining order was ever issued against the perpetrator; it is enough that a judge finds that sometime in the past five years, he or she committed domestic violence against the other party.)
But section 3044 allows the domestic violence perpetrator to overcome or “rebut” these presumptions, but only through a certain number of ways, by a preponderance of the evidence, which is the lowest standard of evidence there is under California law. One of those ways is simply by showing that the “best interests” of the child would be served by not applying the presumption. The trial judge found that this was the case and there was substantial evidence to back up her finding. She therefore awarded three days of visitation or custody to the father each week.
But the Court of Appeal found there was one bad fact the judge relied on in making this determination, even though there was plenty of other “good” evidence that she viewed. The “bad evidence”, so to speak, was the judge’s finding that Omar was more fluent in English than S.Y and that his greater fluency was an advantage for “‘navigation through the American medical and educational system'”. This is because language fluency has “no relation” to the child’s “safety or the impact of prior domestic violence on him”.
But the Court of Appeal still did not reverse the judge’s decision. This is because “there was sufficient other evidence supporting the court’s finding that Omar had rebutted the presumption of detriment with respect to both legal and physical custody”. And, in a footnote, the judges noted that “English fluency was not a proxy for discrimination based on national origin here because Omar and S.Y. were both natives of Middle Eastern countries . . . who had immigrated to the United States. The trial judge never mentioned immigration status, except to say that she came from an immigrant family herself”.
But the justices warned that for future purposes there are a whole series of factors that just like English fluency may likewise not be considered in ruling on child custody. For example, it is wrong to look at the race of a custodial parent’s second spouse; or on a presumption that a single working parent could not provide adequate care for a child; or on the relative economic position of the parties; or on a physical disability; or on a religious belief; or on sexual orientation.
The S.Y. decision was written by the Hon. Patricia Benke of Division One of the Fourth District Court of Appeal. She was joined by Justices Joan Irion and William Dato. A whole battery of attorneys represented the appealing mother, but the father did not participate in the appeal — and still won.
The trial judge was the Hon. Sharon L. Kalemkiarian.
Although this was a case from San Diego County, the decision is binding on trial courts and parties throughout California.