Mother [M] and Father [F] were married in 2013. Together they had one child, [S].
In August of 2016, F became physically violent against M. He pushed her,
slapped her several times, and then chocked her. Then, he grabbed her
by the arm and physically forced her and S out of the house. He locked
the door to prevent them from coming back in. M had no income nor possessions
for herself or S (a toddler at the time), so they went to live with her family.
M filed a complaint against F. He was arrested, but the district attorney
decided not to file charges. However, M was granted a temporary restraining
order against F preventing him from contacting M, S, and M’s family.
In October of 2016, F filed for divorce from M. He requested joint legal
and primary physical custody of S. Later, a family court services [FCS]
counselor recommended the court order joint legal custody, primary physical
custody to M, and supervised visitation for F. FCS also recommended F
attend a series of parenting classes. The court ordered the recommendations
of FCS. The court also made its findings based on California’s Family
Code Section 3011, which states that there is a presumption that perpetrators
of domestic violence are not candidates for physical custody of children.
At a later hearing, after completing the parenting classes and following
his supervised visitation agreement, the court granted F’s request
for unsupervised visitation of S.
In March of 2017, F requested primary physical custody of S. F argued that
on his visitation days, he would take S to public places so S could learn
English. F also spoke to S in English to improve his language skills.
He took S to meet with F’s family, where they spoke English to S,
and he spoke in English with S every night when he phoned S. M spoke very
little English. Her native language was Chaldean, a middle Eastern language
based mainly in Iran and Iraq. Although she tried to take English classes,
she was having difficulty finding them in her language.
F argued that since he was spending so much time with S, and teaching him
English, he should have primary physical custody.
The court found that F had rebutted the 3011 presumption, and granted joint
physical custody of S to F and M. M appealed.
The Appellate Court agreed with M, that the fact F spoke English and M
did not, did not mean he was a better candidate for physical custody of
a child. However, the Court upheld the trial court’s decision stating
the F was able to overcome the 3011 presumption by his physical interactions
with S and his completing of fourteen weeks of parenting classes.