If you speak two or more languages at home, do you know how it could impact your child custody arrangement? Could your spouse use your language against you?

What have courts decided in the past?

In a recent divorce lawsuit, a father argued that the judge should grant him full custody of his child because his wife, the mother, did not speak fluent English. He argued that an English-speaking household was in the child’s better long-term interests.

In this case, the father faced accusations of domestic violence but received rights to joint custody. The wife appealed the decision. The appeals court determined the accused overcame the charges against him, but he was wrong to use his fluency in English in his custody claim.

The appeals court judge stated that in California, it is against the law to use a parent’s race, disability, religion, and other factors against them when deciding child custody. These factors now include English fluency.

Why shouldn’t courts use English fluency in determining child custody?

When a judge is determining child custody, they must decide what is in the child’s best interest. Every case includes unique complicating factors, but the child’s health, safety and welfare are the most important.

English fluency is not relevant unless a significant factor makes it relevant. In this case, the father could not prove that the child would suffer actual harm due to the mother’s lack of English fluency. Without this, language is not a relevant factor in the custody case.

The National Academies of Sciences, Engineering and Medicine published an extensive report on the academic development of young English learners. They point out that “language proficiency is not […] the only or even the most important barrier to academic success.”

Rather, it is a mix of socioeconomic status and other life factors that weigh far more heavily on their ability to succeed. While a divorce can complicate their home life, the language they speak at home is not necessarily the most important factor and should not determine custody.