Mancini Shenk LLP Contributes to Creation of New Law in California

Mancini Shenk LLP is proud to announce that a recent pro bono amicus effort on behalf of the American Civil Liberties Union of Southern California (“ACLU SoCal”) and Asian Americans Advancing Justice – LA (“AAAJLA”) contributed to a newly published decision establishing a new rule of law in California.

As of November 21, 2018, “English fluency [is] an improper factor in considering a child’s best interest in the absence of facts showing actual harm due to language.” S.Y. v. Superior Court of San Diego County, 29 Cal.App.5th 324, 338–339 (2018), as modified on denial of reh’g (Dec. 19, 2018), review filed (Dec. 27, 2018).

We are proud of our contribution to this positive development, and hope parents in California who speak all languages will now enjoy the robust protections provided by well-developed governing law. You can read further detail immediately below.

Thank you to ACLU SoCal and AAAJLA for the opportunity to advocate on your behalf.

The Opinion

In more detail, the published opinion in S.Y. v. Superior Court of San Diego County (available here) provides as follows (Id. at 338-339):

“It was error to use language fluency to rebut the presumption of detriment arising from domestic violence as it has no relation to A.’s safety or the impact of prior domestic violence on him . . .

A court abuses its discretion when it relies on a factor that is not relevant to the child’s best interests when making a determination of custody, and when it applies improper criteria or makes incorrect legal assumptions. (Fajota, supra, 230 Cal.App.4th at p. 1497.) Abuses of discretion have been found when a court based a custody decision on the race of a custodial parent’s second spouse (Palmore v. Sidoti (1984) 466 U.S. 429, 431, 434); on a presumption that a single working parent could not provide adequate care for a child (Burchard v. Garay (1986) 42 Cal.3d 531, 540); or on the relative economic position of parties (Id. at p. 541; In re Marriage of Fingert (1990) 221 Cal.App.3d 1575, 1581); on a physical disability (In re Marriage of Carney (1979) 24 Cal.3d 725, 728); on religious belief (In re Marriage of Murga (1980) 103 Cal.App.3d 498, 504–505); or on sexual orientation (Nadler v. Superior Court (1967) 255 Cal.App.2d 523, 525).

We expand this list by adding English fluency as an improper factor in considering a child’s best interest in the absence of facts showing actual harm due to language. California has demonstrated in other contexts a public policy prohibiting decisions being made on the basis of language fluency when not relevant to the issue. (See Gov. Code, § 11135 [prohibiting discrimination based on ‘ethnic group identification,’ defined by regulation (Cal. Code Regs., tit. 2, § 11161, subd. (b)) to include linguistic characteristics]; Gov. Code, § 68560, subd. (e) [‘The Legislature recognizes that the number of non-English-speaking persons in California is increasing, and recognizes the need to provide equal justice under the law to all California citizens and residents and to provide for their special needs in their relations with the judicial and administrative law system’].) Language fluency might be relevant when there has been a factual finding that lack of fluency is likely to or has resulted in detriment to the child’s best interest. (See Burchard v. Garay, supra, 42 Cal.3d at p. 540 [‘Any actual deficiency in care . . . would of course be a proper consideration in deciding custody.’].) For example, detriment could be shown by a parent who repeatedly doses a child incorrectly with medications due to inability to read the directions. There was no such finding here. “

Procedural Background

Beginning in March of 2018, Founding Partner Michael V. Mancini was given the privilege of working with the ACLU SoCal in an amicus effort to combat a troubling custody determination. In the underlying case, a family court awarded partial legal custody of a three-year-old to his father, whom the court found had strangled and smacked the child’s mother, on the basis that “despite the Court’s finding that there was domestic violence . . . the Court does believe that father has rebutted the presumption against joint legal custody in the following ways . . . the evidence indicates that father’s English language is more fluent.”

On ACLU SoCal’s behalf, Michael prepared an amicus letter (available here) urging the California Supreme Court to review the underlying custody determination or, in the alternative, grant review and transfer the determination to the Fourth District Court of Appeal. The amicus letter was submitted to the California Supreme Court on March 16, 2018, and the California Supreme Court granted review and transferred the case back to the Fourth District Court of Appeal on April 11, 2018.

Shortly after Mancini Shenk LLP opened its doors on May 14, 2018, ACLU SoCal and AAAJLA gave Mancini Shenk LLP the further privilege of submitting an amici curiae brief (available here) arguing that consideration of English language proficiency in custody disputes violates the Equal Protection Clause, Title VI of the Civil Rights Act, and the First Amendment, and is contrary to established public policy. The brief was submitted on June 18, 2018.