Filed 11/21/18 CERTIFIED FOR PUBLICATION COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE STATE OF CALIFORNIA S.Y., D073450 Petitioner, (San Diego County Super. Ct. No. DS59250) v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; OMAR M., Real Party in Interest. Proceedings in mandate and/or prohibition after the trial court made an initial determination of joint physical and legal custody of the parents' child. Sharon L. Kalemkiarian, Judge. Petition denied. Horvitz & Levy, Jeremy B. Rosen, Shane H. McKenzie, Emily V. Cuatto, Melissa B. Edelson; Legal Aid Society of San Diego, Inc., Alison C. Puentes-Douglass, Maria Maranion Kraus, Yvonne Sterling; Family Violence Appellate Project, Jennafer Dorfman Wagner, Anya Emerson, Shuray Ghorishi and Erin C. Smith, for Petitioner. No appearance for Real Party in Interest. Petitioner S.Y. contends that the trial court committed legal error when it found that real party in interest Omar M. had rebutted the presumption that his custody was detrimental to the best interests of their child, A. She requests that we 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 Family Code1 section 3044 presumption of detriment, and award costs to her. We agree with S. that the court erred in considering Omar's greater fluency in English as a factor rebutting the presumption of detriment due to his domestic violence. We conclude, however, that evidence other than language fluency substantially supports 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. We deny the petition. FACTS AND PROCEDURE S.Y. and Omar were married on December 27, 2013 and had one child, A. On August 29, 2016, Omar was physically violent with S.Y.2 He pushed and slapped S.Y. several times and choked her. Omar also grabbed S.Y., forced her and A. out of the house, and locked the door. S.Y. had no possessions for herself or for A., who was 1 Further statutory references are to the Family Code unless otherwise specified. We apply section 3044 as it existed at the time of the trial in October 2017. 2 These facts are taken from S.Y.'s statements to the police the next day. The trial court admitted the statements of S.Y. and Omar contained in the police report, but not the rest of the information in the report. 2 almost two at the time. She went to live with her family. Omar was arrested, but the district attorney decided not to file charges against him. 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 ...
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