S.Y. v. Superior Court of San Diego Cnty.

29 Cal.App.5th 324

240 Cal.Rptr.3d 137

S.Y., Petitioner,

v.The SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent;

Omar M., Real Party in Interest.

D073450

Court of Appeal, Fourth District, Division 1, California.

Filed November 21, 2018

As Modified on Denial of Rehearing December 19, 2018

Horvitz & Levy, Jeremy B. Rosen, Shane H. McKenzie, Emily V. Cuatto, Melissa B. Edelson, Burbank; Legal Aid Society of San Diego, Inc., Alison C. Puente-Douglass, Maria Maranion Kraus, Yvonne Sterling, Bonita; Family Violence Appellate Project, Jennafer Dorfman Wagner, Anya Emerson, Shuray Ghorishi, Walnut Creek, and Erin C. Smith, San Jose, for Petitioner.

No appearance for Real Party in Interest.

BENKE, Acting P. J.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 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 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 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 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 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 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...