Should the language you speak have any bearing on your right to have custody of your children? Does your native tongue affect your ability to raise, support, or otherwise take care of your family? Can the fact that you speak your child’s language fluently help to overcome other issues that may otherwise limit your custodial rights? According to a Fourth District Court of Appeals judge, the answer is generally “no.”
Father Argues Language Proficiency Makes Him a Fit Parent
A San Diego woman recently filed for divorce from her husband, citing a history of physical abuse. In the petition, she sought sole physical custody of the couple’s young son. During a hearing, a judge found that there was sufficient evidence to prove that the husband had, in fact, physically abused the woman. This can be devastating in a child custody case.
In California, a finding of domestic abuse creates a rebuttable presumption that awarding custody to an abusive parent would be “detrimental to the best interests of a child.” A rebuttable presumption doesn’t mean that a parent automatically loses his or her custodial rights. Instead, it shifts the burden of proof to that parent. The parent has the opportunity to argue his or her side of things and prove that they should retain custody, despite the finding of abuse. If the parent can present evidence to show that retaining custody is in the child’s best interests, the rebuttable presumption can be overcome.
There are a variety of arguments or evidence that can be submitted to prove that a parent should retain custody of a child. This can include:
- The parent’s close relationship with the child
- Successful completion of rehabilitation and treatment programs
- Abusive conduct of the child’s other parent
- The other parent’s demonstrated abuse of drugs or alcohol, and
- The other parent’s psychological and/or emotional issues.
In this particular case, the father also argued his ability to speak the English language fluently should be a factor for consideration. Specifically, he said that custody was appropriate because he spoke English better than the boy’s mother. The San Diego Superior Court judge agreed with the father’s argument. She found that his language abilities, when considered with other evidence, helped him to overcome the presumption that custody would endanger his son.
Language Is Not An Appropriate Factor For Determining Custody
On appeal, the Fourth District Court held that the lower court judge had “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.” In other words, the Superior Court judge was wrong to consider the father’s language abilities when determining if it was appropriate for him to share custody of his son.
Rather, the court explained that “English fluency as an improper factor in considering a child’s best interest in the absence of facts showing actual harm due to language.” So, a parent’s ability to speak English should not be considered in a child custody hearing, unless fluency (or lack thereof) actually harms the child.
Courts Will Award Custody Deemed to Be in a Child’s Best Interests
Custody battles aren’t uncommon in California divorce cases. If parents can’t agree on custody matters, they’ll often turn to alternative forms of dispute resolution for assistance. Mediation is even required in most contested custody cases. When mediation fails, a court can step in and make decisions for the family. Custody decisions are always based on what the court believes will serve a child’s best interests. While it’s always preferable to keep a child in contact with both parents, a court will not hesitate to award sole custody when doing so is best for the child’s health, safety, and welfare. Courts have now explained that a parent’s ability to speak a particular language generally doesn’t impact this decision.
Are you struggling with a child custody matter in Los Angeles? Contact our family law attorneys for immediate assistance. We can review your case and explain your rights. We’ll help you negotiate the terms with your child’s other parent and find a solution that works for your family. Call today to learn more.