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.
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
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 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
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 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 ruling at the close of trial. It found that, based on S.Y.'s contemporaneous statements
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 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
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 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).
DISCUSSION
At the end of the trial on custody, the court stated the reasons for its ruling 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)
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
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
1. Standard of Review
The judgment or order of the lower court is presumed correct on appellate review. ( In re Marriage of Marshall (2018)
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)
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
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)
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.
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).)
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.
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
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
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 ruling 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 ,
S.Y. relies on Ellis v. Lyons (2016)
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. (
We expand this list by adding English fluency as an improper factor in
We further note that the trial court was not motivated by discriminatory intent in this case,
The trial court abused its discretion because it used an improper factor in determining custody. ( Fajota , supra ,
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 record shows a reasonable basis for the court's determination that Omar rebutted the domestic violence presumption. (See Fajota , supra ,
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
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 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. (
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 ,
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 ,
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 ,
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.
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)
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.
c. Consideration of Additional Acts of Domestic Violence by Omar
The trial court must consider whether the perpetrator of domestic violence
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),
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) ).
5. The Trial Court's Order Was Adequate Because It Stated the Reasons Supporting its Ruling
S.Y. criticizes the court's statement of reasons because the court did not discuss each statutory factor on the
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).)
This trial court's statement of reasons 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, 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
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 ,
The petition is denied. Each party shall bear its own costs.
WE CONCUR:
IRION, J.
DATO, J.
Notes
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.
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.
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.
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:
"(1) Whether the perpetrator of domestic violence has demonstrated that giving sole or joint physical or legal custody of a child to the perpetrator is in the best interest of the child. [¶] In determining the best interest of the child, the preference for frequent and continuing contact with both parents, ... or with the noncustodial parent, ... may not be used to rebut the presumption, in whole or in part.
"(2) Whether the perpetrator has successfully completed a batterer's treatment program that meets the criteria outlined in subdivision (c) of Section 1203.097 of the Penal Code.
"(3) Whether the perpetrator has successfully completed a program of alcohol or drug abuse counseling if the court determines that counseling is appropriate.
"(4) Whether the perpetrator has successfully completed a parenting class if the court determines the class to be appropriate.
"(5) Whether the perpetrator is on probation or parole, and whether he or she has complied with the terms and conditions of probation or parole.
"(6) Whether the perpetrator is restrained by a protective order or restraining order, and whether he or she has complied with its terms and conditions.
"(7) Whether the perpetrator of domestic violence has committed any further acts of domestic violence."
"Where allegations about a parent pursuant to subdivision (b) [concerning abuse by one parent against another] ... 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 [allegedly abusive] parent, the court shall state its reasons in writing or on the record ...." (§ 3011, subd. (e)(1), emphasis added.)
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 ...."
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 ...."
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.
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.
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].)
"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.)
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."