S.Y. v. Superior Court

S.Y. and Omar were married in 2013 and had one child, A. On August 29, 2016, Omar was physically violent with S.Y. Omar also grabbed S.Y., forced her and A. out of the house, and locked the door. 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 October 2016. Three weeks later, he filed a request for an order for joint legal custody and primary physical custody of A. At a preliminary hearing in 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. The court ordered sole legal custody to S.Y. because she and Omar were not communicating well. 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. The trial court made an initial custody order, finding that, based on S.Y.'s contemporaneous statements to the police and the photographs of her injuries, Omar had been domestically violent toward her. The court applied the Family Code 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. S.Y. contended the trial court erred when it found Omar rebutted the presumption, and requested the Court of Appeal 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 section 3044 presumption of detriment, and award costs to her. The Court agreed that the trial court erred in considering Omar's greater fluency in English as a factor rebutting the presumption of detriment due to his domestic violence. However, the Court concluded that evidence other than language fluency substantially supported 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. View "S.Y. v. Superior Court" on Justia Law