Fluency in English Does Not Make You the Better Parent

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.

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