Filed 11/21/18
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
S.Y., D073450
Petitioner, (San Diego County Super. Ct. No. DS59250) v.
THE SUPERIOR COURT OF SAN DIEGO COUNTY,
Respondent;
OMAR M.,
Real Party in Interest.
Proceedings in mandate and/or prohibition after the trial court made an initial
determination of joint physical and legal custody of the parents' child. Sharon L.
Kalemkiarian, Judge. Petition denied.
Horvitz & Levy, Jeremy B. Rosen, Shane H. McKenzie, Emily V. Cuatto, Melissa
B. Edelson; Legal Aid Society of San Diego, Inc., Alison C. Puentes-Douglass, Maria
Maranion Kraus, Yvonne Sterling; Family Violence Appellate Project, Jennafer Dorfman
Wagner, Anya Emerson, Shuray Ghorishi and Erin C. Smith, for Petitioner. No appearance for Real Party in Interest.
Petitioner S.Y. contends that the trial court committed legal error when it found
that real party in interest Omar M. had rebutted the presumption that his custody was
detrimental to the best interests of their child, A. She requests that we vacate the trial
court's interim order granting joint legal and de facto joint physical custody to both
parents, direct the trial court to enter a new order after reconsidering the Family Code1
section 3044 presumption of detriment, and award costs to her. We agree with S. that the
court erred in considering Omar's greater fluency in English as a factor rebutting the
presumption of detriment due to his domestic violence. We conclude, however, that
evidence other than language fluency substantially supports the trial court's ruling that
Omar had rebutted the presumption of detriment, and that the trial court did not abuse its
discretion in granting joint legal and physical custody to both parents. We deny the
petition.
FACTS AND PROCEDURE
S.Y. and Omar were married on December 27, 2013 and had one child, A. On
August 29, 2016, Omar was physically violent with S.Y.2 He pushed and slapped S.Y.
several times and choked her. Omar also grabbed S.Y., forced her and A. out of the
house, and locked the door. S.Y. had no possessions for herself or for A., who was
1 Further statutory references are to the Family Code unless otherwise specified. We apply section 3044 as it existed at the time of the trial in October 2017.
2 These facts are taken from S.Y.'s statements to the police the next day. The trial court admitted the statements of S.Y. and Omar contained in the police report, but not the rest of the information in the report. 2 almost two at the time. She went to live with her family. Omar was arrested, but the
district attorney decided not to file charges against him.
S.Y. obtained a temporary restraining order against Omar, and Omar obtained
temporary restraining orders against S.Y., S.Y.'s mother, and her brother. S.Y.'s order
granted her sole legal and physical custody of A., but this order was not properly served
on Omar. After hearing evidence from all parties, the court denied the mutual requests
for permanent restraining orders and dismissed the temporary orders. There was a report
to the Health and Human Services Agency that Omar had emotionally abused A., but the
agency closed this referral after investigation.
Omar filed a marital dissolution action against S.Y. in the family court on
October 6, 2016. Three weeks later, he filed a request for an order for joint legal custody
and primary physical custody of A. Omar and S.Y. met with a Family Court Services
(FCS) counselor in March 2017. The counselor issued a report on April 5,
recommending joint legal custody and primary physical custody to S.Y., with limited,
supervised visitation for Omar. The report recommended that after Omar completed a
co-parenting class, parenting class, and three months of consistent visitation, he could
have slightly more visitation with A., unsupervised. The report also recommended that
Omar and S.Y. both complete a parenting class of at least six weeks' duration and a co-
parenting class, and for S.Y. to participate in individual counseling.
At a preliminary hearing on April 24, 2017, the family court awarded S.Y.
physical custody of A., with Omar to have supervised visitation twice a week for five
hours each time. The visits were to be supervised by Omar's sister, with conditions of no
3 corporal punishment and no smoking in front of A. The court ordered sole legal custody
to S.Y. because she and Omar were not communicating well. The court also ordered that
Omar have full access to A.'s medical records and recommended that he attend A.'s
doctor appointments.
A trial on the custody issues was held on October 12, 2017. S.Y. testified that
Omar slapped her and pulled her hair frequently, whenever there was a problem between
them. She said that on August 29, 2016, Omar slapped her, continued hitting her, pulled
her hair, strangled her, kicked her, and pushed her out of the house with A. Omar gave a
different story of what happened on August 29, 2016, painting S.Y. as the instigator, but
the trial court accepted S.Y.'s description of Omar's violence and choking of her.
S.Y. did not let Omar see A. or talk with him on the phone from the time she
moved out in August 2016 until February 2017. She explained that she obtained a
temporary restraining order on September 7, 2016, granting her custody of A. The order
was dissolved when it expired, however. S.Y. said she did not understand what the
courts said about the custody arrangements with Omar after both the temporary
restraining order hearing and the later hearing when the temporary orders expired, and
permanent restraining orders were denied.
S.Y. was the primary caretaker of A., but Omar said he took A. to the doctor
because S.Y. could not communicate with the health care provider. After S.Y. moved out
of the house, on one occasion she permitted Omar to take A. to the doctor without
supervision. Omar testified that when he had visitation with A., he would take A. to
breakfast, the park, and the library. Omar helped A. with his English when they were
4 together and read books in English to him. A. had seven cousins on Omar's side of the
family and enjoyed spending time with them. They spoke English, so A. would be
motivated to speak English with them. Omar called A. every day. S.Y. had no current
concerns about Omar's behavior with A. during visitations.
Omar said he understood that A. needed a mother and a father and that he had to
have a relationship with both parents. As of October 2017, Omar had finished the co-
parenting class and had taken seven parenting classes in a 14-week course. S.Y. was
studying English at school and her language skills were improving. She had taken about
two months of English classes. She had not started parenting classes, however, because
she could not find one in her native language, Chaldean. Nor could she find a co-
parenting class that accepted Medi-Cal, and she had not enrolled in individual counseling
because she could not find any. She had obtained a driver's license in July 2017.
The trial court made an initial custody order and stated the reasons for its decision
at the close of trial. It found that, based on S.Y.'s contemporaneous statements to the
police and the photographs of her injuries, Omar had been domestically violent toward
her on August 29, 2015. The court applied the section 3044 presumption and found that
Omar had rebutted the presumption that an award of custody to him would be detrimental
to A.'s best interest.
The court explained the reasons why it found the presumption had been rebutted.
It found that Omar was not a risk to A. Omar and S.Y. had two families who were both
capable of raising children. The court had no fears for A.'s safety with Omar because his
family was around. The court found that Omar was attentive to A. and understood A.'s
5 development. A. did not want to leave Omar at the end of visits. In addition, from
October 2016 to January 2017, S.Y. had withheld access to A. She had no concerns
about Omar taking A. to the doctor. Omar was more fluent in English than S.Y. The
court concluded it was best for A. to have both parents assisting with and navigating
through the education and medical systems. Also, joint legal custody was better for A.
and was appropriate because both families were very involved in A.'s life. The court
further concluded sole legal custody for S.Y. would cause more family battles, which the
court wanted to resolve. It felt the parents should share in decisionmaking and keep each
other informed.
The court stated that it was giving primary physical custody of A. to S.Y., but
actually awarded de facto joint physical custody. The court ordered four days a week of
physical custody of A. to S.Y. and three days per week to Omar. The court ordered Omar
to take a 12-week domestic violence class and to finish the parenting class he was taking.
S.Y. was ordered to get individual therapy or a parenting class. The court gave
suggestions for parenting classes in Arabic or Chaldean.
S.Y. filed this Petition for Writ of Mandate and/or Prohibition on February 1,
2017, seeking immediate stay and vacation of the preliminary order. We denied the
petition and the request for stay. The Supreme Court granted review of our denial of the
petition and transferred the petition back to this court with directions to vacate our order
and to instead issue an order to show cause why the relief sought in the petition should
not be granted. We vacated our denial of the writ and ordered Omar to show cause why
S.Y.'s petition should not be granted. In the meantime, S.Y. filed a direct appeal from an
6 order and written findings filed in the trial court on February 2, 2018, case No. D073568.
We granted S.Y.'s request that we consider the appeal and the writ together.
Omar has not filed any responsive documents in this writ proceeding or in the
direct appeal. We therefore decide this case based on the record, the documents of which
we take judicial notice, S.Y.'s petition, and her oral argument.
On our own motion, we take judicial notice of the records and briefs, including
amici curiae briefs, filed in the direct appeal, Omar M. v. S.Y. Y., pursuant to Evidence
Code section 452, subdivision (d)(1).3 Amici the American Civil Liberties Union of
Southern California and Asian Americans Advancing Justice - LA (collectively, the
ACLU) contend that the custody order violates the equal protection clause, Title VI of the
Civil Rights Act, and the First Amendment because the trial court stated that Omar's
greater fluency in English was one of the reasons why it found that Omar had rebutted the
presumption that custody for him would be detrimental to A.'s best interest. Amicus Bet
Tzedek argues that limited English proficiency was a proxy for discrimination based on
national origin or immigration status and should not be considered as a factor in custody
and guardianship decisions. And amici California Women's Law Center, National
Housing Law Project, Public Law Center, and San Diego Volunteer Lawyer Program,
3 Under Evidence Code sections 459, subdivision (d) and 455, subdivision (a), we must provide notice to each party of our intent to take judicial notice of matters of substantial consequence. All parties had the opportunity to respond to the record and amici curiae briefs in the direct appeal. No party responded. Moreover, we do not view those briefs and record as matters of substantial consequence because the substance of those documents is contained in the record on this writ proceeding and the documents have no consequential effect on this opinion. 7 Inc. (collectively CWL) contend that the section 3044 presumption of detriment to the
child's best interest cannot be rebutted without completion of parenting classes and a
batterers' treatment program.
DISCUSSION
At the end of the trial on custody, the court stated the reasons for its decision and
issued an interim order granting joint legal custody and de facto joint physical custody to
S.Y. and Omar. The court found that Omar perpetrated domestic violence on S.Y. on
August 29, 2016, giving rise to the section 3044 presumption, but that a grant of custody
to Omar would not be detrimental to A.'s best interests. It found that Omar did not pose a
risk to A.'s safety, given the presence of family members, and that Omar rebutted the
presumption of detriment.
The court stated that it wanted S.Y. to have primary physical custody and that S.Y.
should have four days with A. and Omar should have three days. This was actually a de
facto joint custody order. (Celia S. v. Hugo H. (2016) 3 Cal.App.5th 655, 663 (Celia S.)
[50/50 time split between parents was de facto joint physical custody even though court
said it was giving sole legal and physical custody to mother and characterized father's
time as visitation].) " 'Joint physical custody' means that each of the parents shall have
significant periods of physical custody." (§ 3004.) In Celia S., the order awarding de
facto joint physical custody was reversed because there was simply no evidence rebutting
the domestic violence presumption. (Celia S., at pp. 663, 664.) The case was remanded
for the court to restore sole custody to the mother but noted that the father could move to
modify custody, subject to the section 3044 presumption. (Id. at
8 pp. 664–665.) The appellate court did not find de facto joint physical custody erroneous
in all cases, but that it required rebuttal of the section 3044 presumption. (Ibid.)
We note that the trial court stated that A. would be with S.Y. from Sunday evening
through Thursday morning and with Omar from Thursday morning (or end of preschool)
through Sunday evening. Considering that A. would be asleep at night, this schedule
essentially gave four days to Omar and three days to S.Y. — the opposite of the court's
stated intention. But the court gave leeway to the parties to work out their own days and
hours of time with A. and invited counsel to return ex parte if the parties could not work
this out. We trust that the parties have worked out acceptable visitation hours and if not
have returned to the trial court for resolution.
The trial court's order, delivered verbally at the end of a day of testimony, is not
focused on the appropriate factors for rebutting the presumption of detriment caused by
Omar's domestic violence. The court mixed relevant factors with comments not related
to the domestic violence presumption, and, notably, included English fluency, which was
an unauthorized and improper fact to consider. The trial court's findings overall,
however, amplified by the evidence presented, provide a sufficient statement of its
reasons for finding rebuttal of the presumption to permit meaningful appellate review.
We review the record in the light most favorable to the ruling and uphold judgments if
they are correct and based on substantial evidence. "[I]t is judicial action and not judicial
reasoning or argument, which is the subject of review, and, if the former be correct, we
are not concerned with the faults of the latter. [Citation.]" (In re Quantification
Settlement Agreement Cases (2011) 201 Cal.App.4th 758, 805.) We conclude that the
9 trial court abused its discretion in considering English fluency, but that that error was not
harmful in this case. Sufficient other evidence supports the court's finding that Omar
rebutted the presumption of detriment and the award of joint legal and physical custody
to both parents.
1. Standard of Review
The judgment or order of the lower court is presumed correct on appellate review.
(In re Marriage of Marshall (2018) 23 Cal.App.5th 477, 483; In re Marriage of Falcone
and Fyke (2008) 164 Cal.App.4th 814, 822.) It is presumed that the court regularly
performed its duty by understanding and applying the law correctly. (In re Marriage of
Winternitz (2015) 235 Cal.App.4th 644, 653; Evid. Code, § 664.)
Trial courts have great discretion in fashioning child custody and visitation orders.
We therefore review those orders for an abuse of discretion. (In re Marriage of Fajota
(2014) 230 Cal.App.4th 1487, 1497 (Fajota).) "A court abuses its discretion in making a
child custody order if there is no reasonable basis on which it could conclude that its
decision advanced the best interests of the child. [Citation.] A court also abuses its
discretion if it applies improper criteria or makes incorrect legal assumptions.
[Citation.]" (Id., at p. 1497.) "An abuse of discretion occurs when the trial court exceeds
the bounds of reason; even if we disagree with the trial court's determination, we uphold
the determination so long as it is reasonable. We do not reverse unless a trial court's
determination is arbitrary, capricious, or patently absurd." (Heidi S. v. David H. (2016) 1
Cal.App.5th 1150, 1163 (Heidi S.).) The trial court's factual findings are reviewed for
substantial evidence, in the light most favorable to the judgment. (Fajota, at p. 1497;
10 Celia S., supra, 3 Cal.App.5th at p. 662.) " ' "The trial judge, having heard the evidence,
observed the witnesses, their demeanor, attitude, candor or lack of candor, is best
qualified to pass upon and determine the factual issues presented by their testimony." '
[Citation.]" (Heidi S., at p. 1163.)
2. Section 3044 Presumption of Detriment to Best Interest of Child
The trial court found that on August 29, 2016, Omar perpetrated domestic violence
against S.Y. The court stated that this finding triggered a rebuttable presumption that an
award of sole or joint custody to Omar would be detrimental to A.'s best interest. Section
3044, subdivision (a) provides: "Upon a finding by the court that a party seeking custody
of a child has perpetrated domestic violence against the other party seeking custody . . .
within the previous five years, there is a rebuttable presumption that an award of sole or
joint physical or legal custody of a child to a person who has perpetrated domestic
violence is detrimental to the best interest of the child, pursuant to Section 3011. This
presumption may only be rebutted by a preponderance of the evidence."
The presumption shifts to the perpetrator the burden of persuasion that an award of
custody to him would not be detrimental to the best interests of the child. It does not
establish a presumption for or against joint custody. The paramount factor for custody of
the child is the child's health, safety, and welfare. (Keith R. v. Superior Court (2009) 174
Cal.App.4th 1047, 1055 (Keith R.); §§ 3020, subd. (a); 3040, subd. (b).)
To rebut the presumption, Omar had to show only that, by a preponderance of the
evidence, joint or sole custody to him would not be detrimental to A.'s best interest.
(Jason P. v. Danielle S. (2017) 9 Cal.App.5th 1000, 1026, 1032, fn. 22 (Jason P.); Celia
11 S., supra, 3 Cal.App.5th at p. 662.) The legal presumption is not, as S.Y. asserts, "that a
parent who has committed an act of domestic violence should not be awarded sole or
joint legal or physical custody of a child." Omar's burden was only to persuade the court
his custody would not be detrimental to A'.s best interest. (§ 3044, subd. (a); see Jason
P., at pp. 1026, 1031, fn. 22.) The determination of custody is not to reward or punish
the parents for their past conduct, but to determine what is currently in the best interests
of the child. (In re Marriage of LaMusga (2004) 32 Cal.4th 1072, 1094 (LaMusga);
Keith R., supra, 174 Cal.App.4th at p. 1055.)
3. Statutory Factors for Rebuttal of Presumption of Detriment
The trial court specifically considered the section 3044 presumption and found
that Omar rebutted that presumption.
Section 3044, subdivision (b), sets forth seven factors that the court must consider
when determining if the presumption was rebutted.4 The factors must be considered, but
they are not mandatory requirements for rebuttal of the presumption. "[A]lthough section
3044, subdivision (b) requires the court to consider the factors it lists, it does not require
the court to find they all have been satisfied in order to find the presumption rebutted."
(Jason P., supra, 9 Cal.App.5th at p. 1032, fn. 23.) In Jaime G. v. H.L. (2018) 25
Cal.App.5th 794 (Jaime G.), the appellate court concluded that the trial court had to
discuss each of the seven factors in its statement of decision to provide meaningful
4 Section 3044, subdivision (b) states: "In determining whether the presumption set forth in subdivision (a) has been overcome, the court shall consider all of the following factors: 12 review. (Id. at p. 805.) We agree that the trial court must consider the statutory factors
and provide a statement of decision explaining the basis of its finding. (See § 3011, subd.
(e)(1).) We disagree with Jaime G. to the extent it states that each factor must be
specifically stated in the statement of decision. (See Jaime G., at pp. 805–807, 809.)
Sometimes, as here, certain factors are not in play. The trial court need only provide
sufficient reasons to permit meaningful appellate review. (In re Marriage of Williams
(2001) 88 Cal.App.4th 808, 815 (Williams).) The trial court did so here.
a. Best Interest of the Child
The first factor to be considered in determining rebuttal of the presumption is the
best interest of the child, without using the preference for frequent and continuing contact
with both parents to rebut the presumption of detriment. (§ 3044, subd. (b)(1).)5 The
best interest of the child is always the overriding goal, and when there has been domestic
abuse, the health, safety, and welfare of the child is the controlling factor. (§ 3020, subd.
(c).) The section 3044 presumption does not change that test and does not limit the
evidence cognizable by the court. (Keith R., supra, 174 Cal.App.4th at pp. 1054–1055;
§ 3020, subd. (c); § 3011.)6 The trial court's focus, and our focus on appeal, is the safety
of A., through the lens of Omar's demonstrated violence toward S.Y. The trial court said,
5 Section 3020, subdivision (b), states in part: "(b) The Legislature finds and declares that it is the public policy of this state to assure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage . . . ."
13 "And so given that the family members are around, I don't have any fears for [A.'s]
safety." The trial court's ruling was supported by substantial evidence. S.Y. has
presented no substantial evidence that Omar's legal and physical custody put A. at risk for
his safety, and welfare.
Critically, S.Y. testified that she had no concerns about what was happening
during visits between Omar and A. The court stated, "[S.Y.] doesn't appear to have any
concerns about father's assistance with things like the doctor, which means . . . that father
can contribute to the child's well-being by participating in doctor and school
appointments." There was testimony of only one incident when Omar was physically
violent toward A. Omar slapped A. and pushed him into the wall because A. had thrown
a plastic food bowl at A's grandmother. The trial court was concerned about this,
admonished Omar to use no corporal punishment, and ordered him to finish his parenting
class. But the court also applauded Omar's attendance at the parenting class and found
that he had shown a willingness to learn. Although S.Y. had filed a Child Welfare
Services (CWS) report that Omar had emotionally abused A., CWS closed this referral
after investigation.
6 Section 3020, subdivision (c) provides: "Where the policies [favoring the health, safety, and welfare of a child and preference for continuing contact with both parents] are in conflict, any court's order regarding physical or legal custody or visitation shall be made in a manner that ensures the health, safety, and welfare of the child and the safety of all family members." Section 3011 provides in part: "In making a determination of the best interest of the child . . ., among any other factors it finds relevant, consider all of the following: "(a) The health, safety, and welfare of the child. "(b) Any history of abuse by one parent . . . ." 14 S.Y.'s greatest concern seemed to be about Omar smoking in front of A. Her
counsel said that S.Y. was "mostly concerned about having [Omar's] sister supervise
because of the prior incident of allowing smoking around the child." The trial court
ordered Omar not to smoke in A.'s presence, and Omar agreed never to do so. S.Y. was
also worried about having Omar's sister supervise Omar's visitation with A. because she
had seen her use corporal punishment on her own children. The court also ordered, and
Omar agreed, to not use corporal punishment on A. Notably, S.Y. did not mention any
abuse of A. by Omar, except for the one incident after A. threw a bowl at his
grandmother. S.Y. would certainly have testified to any other abuse of A. by Omar if
such abuse had occurred.
In addition to finding no risk of harm to A. while in Omar's custody, the trial court
also relied on Omar's interactions with A., which were relevant to the rebuttal of the
presumption of detriment. The trial court stated, based on visitation reports, that,
"[Omar] has been attentive and does understand who his son is, which is what I'm
looking for." A. was attached to his father and enjoyed spending time with him.
Substantial evidence supported this finding. A professional visitation supervisor reported
that A. was comfortable when S.Y. left and Omar appeared. Omar's parenting style
including teaching and structuring properly. Omar played with A. They laughed
together. In addition, Omar's sister submitted descriptions of A.'s interaction with Omar,
reporting that Omar played with A., corrected him appropriately, read to him, taught him
English, and cared for A. by feeding him and changing his diapers. A. repeatedly said he
wanted to play with his cousins from Omar's family.
15 In sum, without considering the statutory preference for frequent and continuing
contact with both parents, the substantial evidence of Omar's demonstrated actions and
relationship with A. rebutted the presumption that his custody would be detrimental to
A.'s best interest.
i. Statutory Preference for Frequent and Continuing Contact with
Both Parents
The trial court stated that S.Y.'s withholding of A. from Omar for several months
supported its finding that Omar had overcome the presumption of detriment to the best
interest of the child. S.Y. claims that this reliance was improper because the trial court
impermissibly relied on the preference for frequent and continuing contact with both
parents. We disagree. The court did not mention the presumption for frequent and
continuing contact with both parents as a basis for rebutting the presumption. The court's
decision was grounded on the specific facts of this case, not on the general statutory
preference for continuing contact.
The trial court could reasonably conclude that S.Y.'s withholding of A. from Omar
was relevant to determining if awarding custody to Omar would be detrimental to A.'s
best interest. S.Y.'s prevention of A. from having contact with his father reflected a lack
of understanding of common general parenting best practices and A.'s best interest, as
well as her inability to understand the orders of the court at the restraining order hearing.
Further, section 3044, subdivision (b)(1) did not prevent the court from
considering A.'s need for a meaningful relationship with his father. (See Keith R., supra,
174 Cal.App.4th at p. 1056 ["while Father may have lost his ability to cite [the statutory
16 preference in attempting to overcome the section 3044 presumption], Daughter certainly
did not lose her right to have a meaningful relationship with both parents"].) A.'s
interactions with Omar were positive. In this regard, S.Y.'s prevention of Omar from
seeing A. for an extended period of time disrupted, and was damaging to, the good
relationship between A. and Omar, which was important for A. as long as he was safe in
Omar's presence. (Id. at p. 1057.) Although the court could not rely on the statutory
preference for continuing contact with both parents, the facts describing the nature and
quality of the child's relationship with his parents were relevant to determining the child's
best interest and if the abusive parent had rebutted the presumption that his custody was
detrimental to that interest. The Keith R. court stated that information relevant to the best
interests of the child, in overcoming the section 3044 presumption, "includes evidence
about the nature of Father's relationship with Daughter, his ability and willingness to care
for her, the extent, if any, to which he poses a risk of physical and emotional abuse, his
receptivity to being a 'friendly parent,' and Daughter's needs for more than marginalized
parental relationships." (Ibid.) These considerations were relevant to the best interest of
the child even when the court does not rely on the statutory preference for continuing
contact with both parents. (Id. at pp. 1056–1057.)
S.Y. relies on Ellis v. Lyons (2016) 2 Cal.App.5th 404 (Ellis) to support her claim
that the trial court improperly relied on the statutory preference for continuing contact to
rebut the presumption of detriment. The trial court in Ellis explicitly relied on the section
3040 preference for continuing contact in denying the mother's request for sole legal and
physical custody. (Ellis, supra, at p. 414.) But that was not the error that caused
17 reversal. The error in Ellis was not that the trial court violated section 3044, subdivision
(b)(1) by relying on the statutory preference for parental contact in determining whether
the section 3044 presumption was rebutted; rather, the error was that the court failed to
consider the presumption at all. (Id. at pp. 416–417; see also Celia S., supra, 3
Cal.App.5th at p. 664 [error was lack of any evidence rebutting § 3044 presumption].)
Ellis does not support S.Y.'s claim of error because the trial court here explicitly
considered and applied the section 3044 presumption in making its order and did not
mention the section 3040 preference at any time.
ii. English Fluency
In stating the bases for rebuttal of the presumption, the trial court said that Omar
was more fluent in English than S.Y. and found his greater fluency to be an advantage for
"navigation through the American medical and educational system." It was error to use
language fluency to rebut the presumption of detriment arising from domestic violence as
it has no relation to A.'s safety or the impact of prior domestic violence on him. The
error does not require reversal or remand, however, 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.
A court abuses its discretion when it relies on a factor that is not relevant to the
child's best interest when making a determination of custody, and when it applies
improper criteria or makes incorrect legal assumptions. (Fajota, supra, 230 Cal.App.4th
at p. 1497.) Abuses of discretion have been found when a court based a custody decision
on the race of a custodial parent's second spouse (Palmore v. Sidoti (1984) 466 U.S. 429,
18 431, 434); on a presumption that a single working parent could not provide adequate care
for a child (Burchard v. Garay (1986) 42 Cal.3d 531, 540); or on the relative economic
position of parties (Id. at p. 541; In re Marriage of Fingert (1990) 221 Cal.App.3d 1575,
1581); on a physical disability (In re Marriage of Carney (1979) 24 Cal.3d 725, 728); on
religious belief (In re Marriage of Murga (1980) 103 Cal.App.3d 498, 504–505); or on
sexual orientation (Nadler v. Superior Court (1967) 255 Cal.App.2d 523, 525).
We expand this list by adding English fluency as an improper factor in considering
a child's best interest in the absence of facts showing actual harm due to language.
California has demonstrated in other contexts a public policy prohibiting decisions being
made on the basis of language fluency when not relevant to the issue. (See Gov. Code,
§ 11135 [prohibiting discrimination based on "ethnic group identification," defined by
regulation (Cal. Code Regs., tit. 2, § 11161, subd. (b)) to include linguistic
characteristics]; Gov. Code, § 68560, subd. (e) ["The Legislature recognizes that the
number of non-English-speaking persons in California is increasing, and recognizes the
need to provide equal justice under the law to all California citizens and residents and to
provide for their special needs in their relations with the judicial and administrative law
system"].) Language fluency might be relevant when there has been a factual finding that
lack of fluency is likely to or has resulted in detriment to the child's best interest. (See
Burchard v. Garay, supra, 42 Cal.3d at p. 540 ["Any actual deficiency in care . . . would
of course be a proper consideration in deciding custody."].) For example, detriment
could be shown by a parent who repeatedly doses a child incorrectly with medications
due to inability to read the directions. There was no such finding here.
19 We further note that the trial court was not motivated by discriminatory intent in
this case,7 which could, by itself, demonstrate an abuse of discretion. Consideration of
language proficiency can be discriminatory, and thus improper, when it is used with the
intent to discriminate based on race, ethnicity or national origin. (Hernandez v. New York
(1991) 500 U.S. 352, 362, 371 (plur. opn., Kennedy, J.); see also in Castro v. State of
California (1970) 2 Cal.3d 223, 231 [overturning statute requiring that citizens be literate
in English to vote, in part because "fear and hatred played a significant role" in
Legislature's enactment of requirement].)
The trial court abused its discretion because it used an improper factor in
determining custody. (Fajota, supra, 230 Cal.App.4th at p. 1497.) Omar's greater
English fluency was not relevant to the best interest of A., much less to his safety and to
the domestic violence presumed detriment. In the particular circumstances of this case,
however, we find that English fluency was not a primary factor in the trial court's
determination that Omar had rebutted the presumption of detriment. The trial court
mentioned Omar's fluency in the context of contact with doctors and educators, and S.Y.
had no objection to or concerns about Omar's participation in A.'s health care. S.Y. was
not deprived of custody due to her language.
7 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 — Omar from Jordan and S.Y. from Iraq — 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. The court's comment on English was directed only to communications with education and health care providers. S.Y. was not restricted from using her native language inside or outside her home. 20 We find no miscarriage of justice in this case despite the trial court's error.
Substantial evidence supported the court's finding that Omar rebutted the presumption of
detriment even without consideration of language. The primary factors for rebutting the
presumption arising from domestic abuse are the health, safety, and welfare of the child.
(§ 3020, subd. (c).) The best interest of the child is always the overriding goal. (Keith R.,
supra, 174 Cal.App.4th at pp. 1054–1055; § 3044, subd. (b)(1).) Substantial evidence
showed no risk to A.'s safety in Omar's custody; Omar was attentive to and acted
appropriately with A., including correcting A.'s behavior with reason rather than
violence; and there was no continuing violence after S.Y. moved out. Presumably the
trial court monitored Omar's completion of a parenting class and batterer's treatment
program at the status conference set for April 4, 2018, and would be informed if Omar
had committed any other acts of domestic violence.
The record shows a reasonable basis for the court's determination that Omar
rebutted the domestic violence presumption. (See Fajota, supra, 230 Cal.App.4th at
p. 1497.) The court's error in using language fluency as a factor was harmless.
b. Batterer's Treatment Program and Parenting Class
When the trial court is determining whether a perpetrator of domestic violence has
rebutted the presumption that his custody would be detrimental to the best interest of a
child, subdivisions (b)(2) and (b)(4) of section 3044 require the court to consider whether
the perpetrator has successfully completed a batterer's treatment program and a parenting
class if the court determines the latter class to be appropriate. (§ 3044, subds. (b)(2),
(b)(4).) The trial court was concerned about Omar's perpetration of violence on S.Y. and
21 ordered him to complete 12 weeks of a domestic violence treatment program. He had
never been ordered to attend such a program before. The FCS counselor did not
recommend such a class for him. The trial court did not condition custody on Omar's
completion of the domestic violence class.8 The FCS counselor had recommended that
both parents take a six-week parenting class and a co-parenting class. As of October
2017, Omar had completed seven weeks of a 14-week parenting course. The court
complimented Omar for taking the parenting class and for having a willingness to learn.
The trial court ordered him to complete the parenting class, but again did not require
completion as a condition of custody.
There was no physical abuse by Omar against either S.Y. or A. after August 2016.
S.Y.'s moving out of the house ended Omar's physical abuse of her and protected A. from
witnessing domestic violence by his father. The visitation reports showed that Omar
parented A. appropriately by playing with him, correcting him without abuse, and caring
for his physical and developmental needs. The trial court found that the batterer's
treatment program and parenting classes were helpful and appropriate for Omar, but not
critically needed before Omar could rebut the presumption that his custody would be
detrimental to A.'s best interest.
S.Y. and amici CWL contend that the factors listed in subdivision (b) are
mandatory and require the completion of the parenting classes and batterers' treatment
8 A follow-up status conference was set for April 4, 2018, but we do not know the results of that conference. The minute order setting the conference, filed in October 2017, stated that the next conference was on April 4, 2017, but that was clearly a typographical error in the date. 22 program to rebut the presumption of section 3044. They emphasize the word "shall,"
which connotes mandatory action, but ignore the verb "consider" that follows "shall."
(§ 3044, subd. (b).) To consider is not to require. (Jason P., supra, 9 Cal.App.5th at
p. 1032, fn. 23.) Completion of those programs is not mandatory to rebut the
presumption of detriment. (Id. at pp. 1017–1018, 1028; Jaime G., supra, 25 Cal.App.5th
at p. 807 [characterizing completion of specified programs as a "statutory suggestion"].)
A trial court could reasonably conclude that completion of a batterer's treatment program
was not necessary to rebut the presumption. (Jason P., at p. 1028.) The trial court in
Jason P. ordered that the father's successful completion of individual counseling and joint
counseling with the mother — not a batterer's treatment program — would be sufficient
to rebut the presumption. (Id. at pp. 1017–1018.) The court then violated its own order
by awarding joint custody to the father before he completed the court's requirement. (Id.
at p. 1029.) No batterer's treatment program was required, and the completion of
counseling was necessary only because the trial court found it was necessary to rebut the
presumption of detriment. (Id. at pp. 1017–1018, 1028–1029.)
Similarly, the appellate court in Jaime G. recognized that it might be appropriate
not to require the batterer's treatment program for a domestic violence perpetrator. The
court said that "[s]ound logic may support a deliberate and thoughtful choice" not to
impose a batterer's course. (Jaime G., supra, 25 Cal.App.5th at p. 807.) The Jaime G.
court found that the trial court erred because its statement of decision did not include its
reasons for failing to impose this condition, thwarting meaningful appellate review. (Id.
at p. 809.)
23 S.Y. and CWL also cite Celia S. and Ellis, but in both of those cases the error was
in failing to consider the section 3044 presumption at all. (Celia S., supra, 3 Cal.App.5th
at p. 655; Ellis, supra, 2 Cal.App.5th at pp. 416–417.) S.Y. also cited People v. Cates
(2009) 170 Cal.App.4th 545, 548, which held that Penal Code section 1203.097 required
imposition of a batterer's program as a mandatory condition of probation for a defendant
convicted of domestic violence. (Cates, at pp. 548, 550.) It had nothing to do with child
custody or the presumption at issue here.
None of these cases change the clear and unambiguous language of the statute —
that the court must consider seven factors, with no requirement of full satisfaction of each
factor. (§ 3044, subd. (b); Jason P., supra, 9 Cal.App.5th at p. 1032, fn. 23.) S.Y.
requested that we take judicial notice of documents including legislative history material
of section 3044. We granted her request. S.Y. points to two sentences from section
3044's legislative history supporting her claim that completion of a batterer's treatment
program was required before custody could be awarded.9 Those two sentences are not
persuasive in light of the clear language of the statute. The words of a statute " 'generally
9 S.Y. relies on the following two comments out of the 35 pages of material of which she requested judicial notice: (1) Section 3044 "require[s] the perpetrator to show that he or she has undertaken specific actions to deal with the situation before custody is awarded to the parent." (Assem. Republican Caucus, analysis of Assembly Bill No. 840 (1999 – 2000 Reg. Sess.), p. 2 [Arguments in Support of the Bill, No. 3].); and (2) Section 3044 requires "proof of rehabilitation" to overcome the presumption against joint custody in order to "increase the probability that a domestic violence perpetrator will be a safe custodial parent." (Enrolled Bill Report dated September 1, 1999 from the Health and Human Services Agency, Enrolled Bill Rep. on Assem. Bill No. 840 (1999 – 2000 Reg. Sess.) Sept. 1, 1999, p. 1 [Recommendation and Supporting Arguments].)
24 provide the most reliable indicator of legislative intent.' " (Pineda v. Williams-Sonoma
(2011) 51 Cal.4th 525, 529 (Pineda).) We do not review legislative history unless the
language of a statute is ambiguous. " 'If there is no ambiguity in the language, we
presume the Legislature meant what it said and the plain meaning of the statute
governs.' " (Id. at p. 530; Kaufman & Broad Communities, Inc. v. Performance
Plastering, Inc. (2005) 133 Cal.App.4th 26, 29.) Neither section 3044 nor case law
require completion of a batterer's treatment program or parenting classes to rebut the
S.Y. and CWL also assert that section 3044, subdivision (b)(2) requires a 52- week
treatment program. It does not. Section 3044, subdivision (b)(2) requires a treatment
program that meets the criteria of subdivision (c) of section 1203.097. Batterer's
programs meet the criteria of subdivision (c) if they are open only to persons with a
written referral from the court or probation department stating the number of minimum
sessions required by the court. (§ 1203.097, subd. (c)(1)(N).) Fifty-two-week classes are
required only for defendants on probation for a domestic violence crime. A mandatory
condition of probation for domestic violence perpetrators is "[s]uccessful completion of a
batterer's program, as defined in subdivision (c) . . . for a period not less than one year."
(Pen. Code, § 1203.097, subd. (a)(6).) Omar was ordered to attend a batterer's program
by the family court. The court stated that Omar had to complete a minimum of 12
sessions of the program. He was not on criminal probation and he did not have to attend
a year's worth of sessions.
25 CWL argues that the appellate courts "consistently misapply the presumption in
domestic violence cases," because they do not require that the batterer's treatment
program and parenting class be completed. But it is the courts that provide guidance in
interpreting statutes through application of the statute in specific cases. (American
Coatings Assn. v. South Coast Air Quality Management Dist. (2012) 54 Cal.4th 446, 462
["[T]he proper interpretation of a statute is ultimately the court's responsibility."].) We
follow the guidance of the courts and the clear language of the statute in finding no
requirement that a batterer's treatment program and parenting classes must be completed
in every case in order to rebut the presumption of detriment.
In sum, a trial court must consider completion of a batterer's treatment program
and parenting classes when determining if the section 3044 presumption has been
rebutted, but neither attendance at nor completion of those two classes are required by the
statute. The trial court found that Omar had rebutted the presumption of detriment even
without completion of those classes. Omar's current active, age-appropriate interactions
with A. were far more relevant than completion of classes in determining if awarding
joint custody to Omar would be detrimental to A.'s best interest. The trial court did not
abuse its discretion in finding that Omar had rebutted the presumption of detriment with
respect to parenting classes and batterer's treatment program. (Fajota, supra, 230
Cal.App.4th at p. 1497 [standard is abuse of discretion]; Heidi S., supra, 1 Cal.App.5th at
p. 1163 [reversal warranted only if court's decision was arbitrary or capricious].)
26 c. Consideration of Additional Acts of Domestic Violence by Omar
The trial court must consider whether the perpetrator of domestic violence has
committed any further acts of domestic violence under section 3044, subdivision (b)(7).
The trial court found that Omar perpetrated domestic violence against S.Y. on August 29,
2016. S.Y. testified to other prior acts of violence, but the trial court made no finding of
domestic violence other than the hitting and choking on August 29, 2016. No physical
violence was reported after S.Y. moved out of the house.
S.Y. and CWL discuss extensively the detriment to a child who lives in a
household where domestic violence occurs. We do not disagree. But citations to general
studies are not helpful or relevant to our review of the primary issues here — A.'s current
safety in the custody of Omar and A.'s best interest. A. no longer lived in a household
where domestic violence occurred and he was not a witness to continuing violence.
S.Y. asserts that Omar continued to harass or threaten her, a form of domestic
violence. The incidents she cites, however, do not seem to rise to domestic violence as
defined in section 3044, subdivision (c),10 which includes threatening or harassing for
which a court may issue an ex parte order to protect the safety of family members. A
10 "For purposes of this section, a person has 'perpetrated domestic violence' when he or she is found by the court to have intentionally or recklessly caused or attempted to cause bodily injury, or sexual assault, or to have placed a person in reasonable apprehension of imminent serious bodily injury to that person or to another, or to have engaged in any behavior involving, but not limited to, threatening, striking, harassing, destroying personal property or disturbing the peace of another, for which a court may issue an ex parte order pursuant to Section 6320 to protect the other party seeking custody of the child or to protect the child and the child's siblings." (§ 3044, subd. (c), emphasis added.) 27 court would not likely issue a restraining order based on the evidence S.Y. presented.
S.Y. alleges that Omar threatened to sue her for enrolling A. in preschool, and that, in the
words of her attorney, he used the court order as a "weapon" to control S.Y. In the
incident supporting the latter allegation, according to S.Y.'s attorney, Omar told S.Y. that
he was keeping A. for an additional five hours the next day to make up for time missed
when A. was on vacation with S.Y., and Omar refused to transport A. to S.Y.'s, claiming
his actions were in accordance with the trial court's order. The trial court chastised the
parties for their continued lack of cooperation but did not find additional domestic
violence. In any event, A. was not privy to those communications between S.Y. and
Omar. (Cf. Rybolt v. Riley (2018) 20 Cal.App.5th 864, 870–871, 878 [father continued to
harass mother in child's presence, causing stress to child].) S.Y. and the ACLU also
discuss a batterer's ability to control a victim with limited English ability. But S.Y. now
lives apart from Omar and is attending English classes. The threats and harassment that
S.Y. alleged were not in the presence of A. and did not put his health, safety, and welfare
at risk.
4. Other Statutory Factors
The other statutory factors were not at issue here. There was no suggestion of
drug or alcohol abuse (§ 3044, subd. (b)(3)); Omar was not and never had been on
probation or parole (§ 3044, subd. (b)(4)); and Omar was not restrained by a protective or
restraining order (§ 3044, subd. (b)(6)).
28 5. The Trial Court's Order Was Adequate Because It Stated the Reasons
Supporting its Decision
S.Y. criticizes the court's statement of decision because the court did not state its
reasons about each factor on the record. The statement of decision was sufficient because
it set forth the court's reasons with sufficient clarity to permit meaningful appellate
review.
Where the court has considered domestic violence in a child custody case, it must
state the reasons for its ruling in writing or on the record. (§ 3011, subd. (e)(1).)11 This
does not require the trial court to specifically discuss each of the seven factors listed in
section 3044, subdivision (b). "Nothing in Family Code section 3011 defines what the
court's statement of reasons must contain except that it include the court's reasons for the
custody award in light of allegations of . . . abuse." (A.G. v. C.S. (2016) 246 Cal.App.4th
1269, 1284–1285.) The purpose of the statement of reasons is to permit meaningful
review by the appellate court. (Williams, supra, 88 Cal.App.4th at p. 815; but see Jaime
G., supra, 25 Cal.App.5th at pp. 806–807.) The court in Jaime G. recently held that
section 3011, subdivision (e)(1), requires the trial court to specifically mention each of
the seven factors of section 3044. (See Jaime G., at pp. 805–807, 809.) But the plain and
ordinary language of sections 3011 and 3044 do not require a step-by-step discussion of
each of the statutory factors, some of which may not be applicable. (See Pineda, supra,
11 Section 3011, subdivision (e)(1) states: "Where allegations about a parent [of a history of abuse or substance abuse] have been brought to the attention of the court in the current proceeding, and the court makes an order for sole or joint custody to that parent, the court shall state its reasons in writing or on the record." 29 51 Cal.4th at pp. 529–530 [plain words of a statute govern unless language is
ambiguous].) The Jaime G. court purported to rely on statutory construction of section
3011, subdivision (e)(1) even though its language is clear. The Jaime G. court cited no
legislative history except for a Judiciary Committee Analysis that stated only "[t]he
purpose of the rebuttable presumption statute is to move family courts, in making custody
determinations, to consider properly and to give heavier weight to the existence of
domestic violence." (Id. at p. 805.) Otherwise, Jaime G. relied on multiple sources other
than case law and legislative history. (Id. at pp. 805–807.) We follow the plain words of
the statute that the court must give a statement of reasons without requiring a decision on
each of the seven enumerated factors. (Pineda, supra, 51 Cal.4th at pp. 529–530.)
Judicial gloss adds the requirement that the court's statement be sufficient for meaningful
review. (Williams, supra, 88 Cal.App.4th at p. 815.) We are able to meaningfully review
the court's statement of decision here. Discussion of each of the statutory factors is not
mandated.
This trial court's statement of decision is sufficient for meaningful review,
particularly in light of the evidence at trial and the extensive information submitted to the
court. Substantial evidence supported the trial court's finding that despite continuing
animosity between S.Y. and Omar, A. had a close, appropriate relationship with Omar.
6. No Cumulative Error
We find that the trial court's error in relying on English fluency to rebut the
domestic violence presumption was not sufficient by itself to find an abuse of discretion,
30 and the court did not otherwise err. S.Y. has never shown any risk of harm to A. in
Omar's custody. We find no cumulative error in the court's exercise of its discretion.
7. Overall, the Trial Court Did Not Abuse its Discretion in Finding That Omar
Had Rebutted the Presumption of Detriment to A.'s Best Interest
The trial court understood and explicitly applied the presumption created by
section 3044. The purpose of the section 3044 presumption is to protect the health,
safety, and welfare of the child, not to punish the child and/or perpetrator for past crimes.
(LaMusga, supra, 32 Cal.4th at p. 1094.) Substantial evidence supports the court's
findings that A. was not at risk in Omar's custody and that the section 3044 presumption
of detriment had been rebutted. We find that despite the court's error in relying on
English fluency, the trial court did not otherwise abuse its discretion in awarding joint
physical and legal custody to Omar. (Fajota, supra, 230 Cal.App.4th at p. 1497; Heidi
S., supra, 1 Cal.App.5th at p. 1163.)
31 DISPOSITION
The petition is denied. Each party shall bear its own costs.
BENKE, Acting P. J.
WE CONCUR:
IRION, J.
DATO, J.