Metropolitan News-Enterprise


Monday, November 26, 2018


Page 1


Court of Appeal:

Father’s English Proficiency Improperly Used As a Factor in Child Custody Award

Opinion Says It Bore No Relevance to the Issue of Whether the Man Could Rebut Presumption of Unfitness Based on Abuse of His Wife


By a MetNews Staff Writer


A San Diego Superior Court judge abused her discretion in finding that a father who had physically abused his wife overcame a presumption of ineligibility for partial custody of a child in part based on his greater proficiency in English than the boy’s mother possessed, the Fourth District Court of Appeal has held.

Despite that error, Acting Presiding Justice Patricia D. Benke of Div. One. said in an opinion filed Wednesday, “that that error was not harmful in this case.” She said the father, Omar Matti (identified by her as “Omar M.”), produced substantial evidence overcoming the presumption.

In dictum, she said a parent’s fluency in English should never be taken into account unless some factor renders it relevant.

At a custody hearing conducted as part of a marriage dissolution action, Judge Sharon L. Kalemkiarian found that the father had previously physically abused the mother, Seeleevia Yousif (referred to by Benke as “S.Y.”). Under Family Code §3044, such a finding carries a rebuttable presumption that custody to the abuser would be “detrimental to the best interest of the child.”

Kalmkiarian further found that the father had successfully rebutted the presumption. In addition to his superior grasp of English, she found that he was not a risk to his son, his family was involved in the boy’s life and that the preschooler would be best served by the involvement of both parents.

Benke’s Opinion

“In stating the bases for rebuttal of the presumption,” Benke wrote, “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.”

She added:

“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.”

(The opinion states that the mother’s native language is Chaldean, a branch of Aramaic spoken by some Assyrian Christians native to areas in northwest Iran and northern Iraq. El Cajon, near San Diego, is home to a sizeable Chaldean community.)

Growing List

Benke declared:

“Abuses of discretion have been found when a court based a custody decision on the race of a custodial parent’s second spouse…; on a presumption that a single working parent could not provide adequate care for a child…; or on the relative economic position of parties…; on a physical disability…; on religious belief…; or on sexual orientation….

“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.”

District Split

Benke rejected, in part, the July 31 opinion from this district’s Court of Appeal in Jaime G. v. H.L. There, Los Angeles Superior Court Judge John S. Wiley, sitting on assignment to Div. Seven, wrote that Family Code §3011, which governs the determination of custody rights, “requires family courts to make specific findings, in writing or on the record, about seven factors, including whether the perpetrator has successfully completed a batterer’s treatment program.”

Benke said:

“We agree that the trial court must consider the statutory factors and provide a statement of decision explaining the basis of its finding.…We disagree with Jaime G. to the extent it states that each factor must be specifically stated in the statement of decision.…Sometimes, as here, certain factors are not in play. The trial court need only provide sufficient reasons to permit meaningful appellate review.”

Framing of Presumption

The jurist also rejected the mother’s framing of the nature of the presumption. She wrote:

“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 [the child]’s best interest….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.”

The first factor for consideration enumerated in §3011 is “[t]he health, safety, and welfare of the child.” The §3044 presumption, Benke explained, speaks to that factor.

The case is S.Y. v. Superior Court, 2018 S.O.S. 5485.


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