Bazemore v. Davis

394 A.2d 1377, 1978 D.C. App. LEXIS 569

• Court: District of Columbia Court of Appeals
• Decided: December 1, 1978
• Docket: 12093
• Status: Published

Opinions

MACK, Associate Judge:

Circumstances of this case have precipitated en banc consideration of the issue of whether, in child custody disputes between natural parents, there is a valid presumption that the interest of a child of tender years is best served in the custody of the mother.

The dispute arose on April 18,1975, when appellee Sharon Davis sued appellant Lawrence Bazemore to regain custody of their minor child, Tonya. The case was heard on appellee’s motion for pendente lite custody by Judge Washington on February 10,1976. As a result of that hearing, Judge Washington determined that

the health and safety of the child are presently better served at the home of [appellant] than at the home of [appellee];

. the environment for the child is better in [appellant’s] home than in [ap-pellee’s] home at this time;

permanent custody of Tonya can only be awarded to either party after the Intra-Family and Neglect Branch, Social Services Division, Superior Court of the District of Columbia, investigates the home of both [appellee] and [appellant] and makes a recommendation available to this court; ....

Accordingly, on May 10, 1976, Judge Washington issued an order awarding temporary custody to appellant Lawrence Bazemore, pending an investigation by the Intra-Family and Neglect Branch of the Social Services Division of the Superior' Court. On August 20, 1976, the Intra-Family and Neglect Branch filed a memorandum recommending that permanent custody of the child be awarded to the father, Lawrence Bazemore. However, because of the intervening illness of Judge Washington, trial was held before Judge Hamilton on January 12, 1977, at the conclusion of which Judge Hamilton awarded custody to the mother, Sharon Davis. It is this last decision which was appealed, and which has now been reviewed by both the original division and the court en banc. We reverse and remand.

I.

The record reveals that the child, Tonya, was born on October 18, 1972, out of wedlock. From the date of her birth until July 1974, Tonya lived with her mother, appellee Sharon Davis, in the home of Ms. Davis’ parents. Throughout this period Ms. Davis was attending school, and Ms. Davis’ mother took care of Tonya. In August 1974, Ms. Davis voluntarily relinquished custody of Tonya to appellant Lawrence Bazemore, the child’s father, who also was living in his parents’ home. As Mr. Bazemore was both going to school and working, his mother took care of Tonya.

At the time of the trial — January 1977 — • Tonya was still living with her father, Lawrence Bazemore, in the home of his parents, and was still being cared for by her paternal grandmother. Tonya’s mother, Sharon Davis, was also still living with her parents. She was still attending school, but had, in addition, made arrangements to work part-time. Ms. Davis acknowledged that if she regained custody of Tonya, the child would be cared for once more by her maternal grandmother.

The trial court ruled from the bench in favor of the child’s mother, giving the following explanation:

Now, as you both know, in cases of this nature, the law prefers the mother — the natural mother as the custodian of the child and only denies to the natural mother the custody of the child when it can be shown and demonstrated by reasonable convincing and clear evidence that such natural mother is unfit as a parent. That is to say, such natural mother is either unwilling or unable to discharge those duties and responsibilities normally required in order to properly and adequately in a reasonable manner provide for the child. And although defendant made that allegation in his answer in response to this petition of custody by the parent, it does not appear to me the evidence has clearly and convincingly established, as it must do under the law, that the natural mother is unfit — that is to say either unwilling or unable to perform those duties reasonably necessary for the welfare of the child.

* sis * * * *

The next inquiry is what, under such circumstances, would be in the best interest of the child; but, we don’t even reach that point under the law because, as I stated, the law does not deprive a natural mother — that is one of the rights of motherhood which only mothers can have, the natural right to have their offspring. And, unless it can be demonstrated that they are unfit to have it and, unfortunately, the civil law has incorporated that the natural right of the mother to have custody of her offspring. That is the natural and the civil law.

So, under the circumstances, gentlemen, I don’t know anything that I can do except give this child to its mother . . .

In support of its ruling, the court prepared a brief written order citing one case. The order reads, in relevant part, as follows:

Undoubtedly, the mother of a minor child of tender years has the strongest claim to custody of her child and ordinarily cannot be deprived of that custody except upon a showing that she is unfit or unable to care for the child. (Matter of N.M.S., [D.C.App.] 347 A.2d 924). Here there being no such showing, it is hereby

ORDERED, ADJUDGED, and DECREED that Ms. Sharon Davis be awarded custody of the minor child, Tonya La-Shurn Davis.

II.

In their briefs and in oral argument before this court, all parties to this case agree that the proper standard to be applied in custody disputes between the natural mother and natural father of a child is the best interest of the child. The best-interest-of-the-child concept has, indeed, been the standard in this jurisdiction since the beginning of the century. Ross v. Ross, D.C.App., 339 A.2d 447, 448 (1975); Monacelli v. Monacelli, D.C.App., 296 A.2d 445, 447 (1972); Rzeszotarski v. Rzeszotarski, D.C.App., 296 A.2d 431, 439 (1972); Lindau v. Lindau, D.C.App., 286 A.2d 864, 865 (1972); Dorsett v. Dorsett, D.C.App., 281 A.2d 290, 292 (1972); Coles v. Coles, D.C.App., 204 A.2d 330, 331 (1964); Bartlett v. Bartlett, 94 U.S.App.D.C. 190, 192-93, 221 F.2d 508, 510-12 (1954); Stickel v. Stickel, 18 App.D.C. 149, 151 (1901); Wells v. Wells, 11 App.D.C. 392, 395 (1897). See also Utley v. Utley, D.C.App., 364 A.2d 1167, 1170 (1976) and cases cited therein. Cf. In re J.S.R., D.C.App., 374 A.2d 860, 863 (1977). The best interest of the child is also the standard used in custody disputes between the natural father and mother of an illegitimate child. See Barrett v. Koppen, D.C.Mun.App., 154 A.2d 132 (1959).¹

In the instant case, the trial court relied on the proposition that a fit mother can never be deprived of custody, and explicitly refused to reach the issue of the best interest of the child. In this, the court clearly erred.²

Counsel for appellee, however argues that in spite of the trial court’s error we can affirm that court’s decision. The argument can be stated as follows: (A) the trial court explicitly found that in most respects the parties were similarly situated; (B) there is, in this jurisdiction, a presumption that young children are better off with their mother; (C) accordingly, we can infer that in this case it would be in Tonya’s best interest to go with her mother.

III.

As to appellee’s first assertion, the trial court did not find that in all respects appellant and appellee were similarly situated. Rather, the court found that with respect to financial, educational, cultural, and familial circumstances, there was no substantial difference between the parties. In spite of these similarities, at least one extremely important difference between the circumstances of appellant and appellee is clear from the face of the record, namely, that at the time of the trial, the child, then over four years old, was living with the father and had been living with him for the previous two and a half years. As to this, the court significantly noted: “Bouncing this child back and forth between mother and father, paternal and maternal grandmothers, has not and will not be healthy for her. Each time she is moved, she gets a scar and who knows whether if ever it will be healed.”

As to the second part of appellee’s argument, it is true that in this jurisdiction there is, at present, a presumption that small children are better off with their mother. Ross v. Ross, supra at 448; Monacelli v. Monacelli, supra at 447; Rzeszotarski v. Rzeszotarski, supra at 439; Lindau v. Lindau, supra at 865; Dorsett v. Dorsett, supra at 292; Coles v. Coles, supra at 331; Boone v. Boone, 80 U.S.App.D.C. 152, 154 150 F.2d 153, 155 (1945). It is this presumption that we now reexamine. See generally Roth, The Tender Years Presumption, 15 J.Fam.L. 423 and articles cited therein at 423 n. 1 (1976-77); Johnson v. Johnson, 564 P.2d 71, 75 (Alaska 1977); Strand v. Strand, 41 Ill.App.Sd 651, 656, 355 N.E.2d 47, 52 (1976); Pratt v. Pratt, 29 Ill.App.3d 214, 216, 330 N.E.2d 244, 246 (1975); In re Marriage of Bowen, 219 N.W.2d 683, 688 (Iowa 1974); State ex rel. Watts v. Watts, 77 Misc.2d 178, 350 N.Y.S.2d 285 (Fam.Ct.1973); Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635, 639 (1977) (opinion of Nix, J.; three judges concurring in the result).

Under common law, there was no presumption in favor of the mother. To the contrary, the father, as a matter of right, was entitled to the custody of his children. Roth, The Tender Years Presumption, supra at 424-28; Annot., 70 A.L.R.3d 262,,267 (1976); 46 C.J. Parent-Child § 10(b) at 1225-29 (1928); 19 C.J. Divorce § 798(b) at 344-45 (1920). This was also the law in the District of Columbia. Barney v. DeKraft, 6 D.C. (1 Mackey) 361, 367 (1862); Mauro and Forrest v. Ritchie, 3 D.C. (3 Cranch) 147, 155-56, 158 (1827), appeal dismissed, 2 Pet. 243, 7 L.Ed. 411 (1829).³

Towards the end of the nineteenth century, however, the traditional rule that the father was always entitled to custody began to give way to a standard under which the best interests of the child controlled. Roth, The Tender Years Presumption, supra at 425; Annot., 70 A.L.R.3d 262, 267 (1976). In the District of Columbia, this shift can be seen in Wells v. Wells, supra at 395, which was decided in 1897, and Stickel v. Stickel, supra at 151, which was decided in 1901.

Gradually, thereafter, in fact first, and then in law, the standard favoring the best interest of the child evolved into a preference for the mother. Roth, The Tender Years Presumption, supra at 425; Annot., 70 A.L.R.3d 262, 267-68 (1976). In this jurisdiction, although the best interest of the child standard persisted, and still persists, a presumption developed that the child’s welfare was generally best served by awarding custody to the mother. The first mention of the presumption is in a 1945 case. Boone v. Boone, supra, 80 U.S.App.D.C. at 154, 150 F.2d at 155. There, the court stated, in dictum, that “[undoubtedly, the presumption that small children are better off with their mother is entitled to weight.” Id. In support of this proposition, the Boone court cites one case, which is inapposite,⁴ and offers no explanation.

Since Boone, the presumption in favor of the mother has been alluded to in many District of Columbia cases. Ante at 1379. Yet in no case has any explanation of the rationale behind the presumption been offered.

McCormick, in his treatise on evidence, suggests that there are four principal reasons for the creation of presumptions. First, some presumptions are created to correct an imbalance resulting from a party’s superior access to the proof. Second, notions, usually implicit rather than expressed, of social and economic policy incline the courts to favor one contention by giving it the benefit of a presumption, and correspondingly to handicap the disfavored adversary. Third, a presumption may be created to avoid an impasse, to reach some result, even though it is an arbitrary one. Lastly, a presumption may be based on a judicial belief that proof of some fact renders the inference of the existence of another fact so probable that it is sensible and time-saving to assume the truth of the other fact until the adversary disproves it. See C. McCormick, Handbook of the Law of Evidence at 806-07 (2d ed. 1972).

The first rationale suggested by McCormick would not justify a presumption here, as both parents have equal access to proof concerning their child’s best interests.

Nor do the second, third or fourth reasons survive close scrutiny as a valid basis for the presumption here at issue, for they would be either arbitrary, or based on unwarranted assumptions. For instance, courts may have assumed that “. . .a mother keeps the home, performs household duties, and will have more time to devote to the children and their welfare.” In re Marriage of Bowen, supra at 688. Such an assumption, however, fails to take into account the realities of the divorced or single mother, who must assume the obligations of both parents, and is often not at home caring for the child but out working. See Roth, The Tender Years Presumption, supra at 452-56; Podell, Peck and First, Custody—To Which Parent?, 56 Marq.L. Rev. 51, 53-54 (1972); Note, Measuring the Child's Best Interests—A Study of Incomplete Considerations, 44 Den.L.J. 132, 139— 42 (1967); Behles, Equal Rights in Divorce and Separation, 3 N.M.L.Rev. 118, 133 (1973).

If the assumption that female parents are the best parents is based upon some special judicial insight into the workings of human nature, it fares no better. Eminent child psychiatrists have demonstrated that what a child needs is not a mother, but someone who can provide “mothering.” Mothering refers to the “nurturing of the human potential of every baby to love, to trust, and to bind himself to human partnership,” Fraiberg, Every Child’s Birthright: In Defense of Mothering at xii (1977), or the giving of consistent and predictable affection, acceptance, approval, protection, care, control and guidance. See Howell, Can Fathers Be Parents? Justice Vol. II, No. 1 (1974). And the ability of a person to provide “mothering” does not necessarily correspond to the gender of the parent or the biological relationship between adult and child. See generally, Fraiberg, supra; see also State ex rel. Watts v. Watts, supra, 77 Mich.2d at 180-81, 350 N.Y.S.2d at 288-90.

But it is urged upon us that the presumption is a useful tool for the resolution of custody cases. We do not think that it is. For even if the presumption had some indeterminable validity, in unspecifiable circumstances, it could serve no purpose other than to save time. See McCormick, supra at 807. But this saving of time is accomplished at the price of tremendous legal and logical confusion,⁵ and accompanied by an intolerable risk of unnecessary error.

In the first place, a rule of law providing that a mother has the strongest claim to the custody of her child obscures, and indeed may be inconsistent with the basic tenet, overriding all others, that the best interest of the child should control. See In re Marriage of Bowen, supra at 688. Such a rule carries a ring of proprietorship and focuses attention upon the mother’s emotional needs rather than upon those of the child. See J. Goldstein, A. Freud and A. Solnit, Beyond the Best Interests of the Child at 12 (1973).

Besides obscuring the basic issue in the case, the presumption is itself obscure in application. Thus, as amicus curiae for appellant has pointed out, none of our cases define what a child of tender years is. Other jurisdictions, in the absence of statutes, have struggled with the issue of whether the tender years doctrine is applicable only to infants, or only to children under five, or only to children under ten. See Annot., 70 A.L.R.3d 262, 287-93. There are likewise questions as to whether the presumption is controlling or persuasive, whether factors such as the sex of the child affect its existence or weight, whether the presumption is applicable only when other things are equal, and whether a showing of the mother’s unfitness⁶ is a sine qua non for the rebuttal of the presumption. See Annot., 70 A.L. R.3d 262, 278-93. Compare generally the verbal formulations and holdings of In re N.M.S., D.C.App., 347 A.2d 924, 927; Rzeszotarski v. Rzeszotarski, supra at 439; Coles v. Coles, supra at 331.

Finally, the presumption facilitates error in an arena in which there is little room for error. A court in a child custody case acts as parens patriae. Rzeszotarski v. Rzeszotarski, supra at 439; Boone v. Boone, supra 80 U.S.App.D.C. at 154, 150 F.2d at 155. It is not enough to suggest that the task of deciding custody is a difficult one, or that the use of a presumption would result in a correct determination more often than not.⁷ A norm is ill-suited for determining the future of a unique being whose adjustment is vital to the welfare of future generations. Surely, it is not asking too much to demand that a court, in making a determination as to the best interest of a child, make the determination upon specific evidence relating to that child alone. As one court has aptly noted, magic formulas have no place in decisions designed to salvage human values. Lemay v. Lemay, 109 N.H. 217, 218, 247 A.2d 189, 191 (1968).

For the reasons stated we now direct that, in a dispute between a natural mother and father over custody of their child, the trial courts shall decide the delicate question of what is the child’s best interests solely by reference to the facts of the particular case without resort to the crutch of a presumption in favor of either party. See the District of Columbia Marriage and Divorce Act, supra § 108(d) and § 109 (amending D.C. Code 1973, §§ 16-911(4) and -914). Any of the prior decisions inconsistent herewith are hereby overruled.

IV.

In conclusion, the law is that in a dispute between the biological parents over custody, the sole consideration is the best interest of the child. In the instant case, the trial court explicitly refrained from deciding what was in Tonya’s best interests. Nor do we think that, on the basis of this record, we can say with assurance what would be best for the little girl. In these circumstances, we must remand the case to the trial court for a new determination of the question of custody.

It is so ordered.

1 . Although it did not become effective until after the trial in this case, the District of Columbia Marriage and Divorce Act deems a child born either in or out of wedlock as the legitimate child of its father and mother. District of Columbia Marriage and Divorce Act, D.C.Law No. 1-107, § 105 (amending D.C.Code 1973, § 16-908).

2 . The trial court relied upon In re N.M.S., D.C.App., 347 A.2d 924 (1975). In re N.M.S., however, did not deal with the rights of a natural mother as against a natural father, but with the rights of a natural parent as against third parties. We do not, in this case, need to delve into that controversial area, for whatever the appropriate standard in disputes between natural parents and third parties, see Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 555, 54 L.Ed.2d 511 (1978); Smith v. Organization of Foster Families for Equality and Reform, 431 U.S. 816, 833-38, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977), as between the natural mother and natural father, the best interest of the child is still determinative.

3 . By the law of England there are various kinds of guardians. 1, Guardian in chivalry; 2, in socage; 3, by nature; 4, for nurture .

3. Guardianship by nature, existed only where the ward was heir apparent of the guardian, and extended only to the person of the ward. The father was always guardian by nature of the person of his heir apparent .

* ^ * * * *

Of the four kinds of guardianship at common law, it is believed that only one exists in this country, namely, guardianship by nature . [G]uardianship by nature exists in this country, and applies to all the children. [Mauro and Forrest v. Ritchie, supra at 155-56, 158 (emphasis supplied).]

4 . The case cited is Sardo v. Villapiano, 65 App.D.C. 121, 122, 81 F.2d 255, 256 (1935), where is was said that

[I]t is established both by statute and common law that as between the grandfather and the mother the child should be intrusted to the mother, unless such a course is inconsistent with the child’s welfare. Title 15, c. 3, § 31, D.C.Code 1929. [Emphasis supplied.]

5 . As to the confusion which clouds the subject of presumptions generally, Thayer wrote:

that the numberless propositions figuring in our cases under the name of presumptions are . . . quite too loosely conceived of and expressed, to be used or reasoned about without much circumspection. Many of them are grossly ambiguous, true in one sense and false in any other; some are not really presumptions at all, but only wearing the name; some express merely a natural probability, and others, for the sake of having a definite line, establish a mere rule of legal policy; very many of them . . . lay down a prima facie rule of the substantive law, and others, a rule of general reasoning, and of procedure, founded on convenience or probability or good sense . . .. Some are maxims, other mere inferences of reason, others rules of pleading, others are variously applied . . .. Among things so incongruous as these and so beset with ambiguity there is abundant opportunity for him to stumble and fall who does not pick his way and walk with caution. [J. Thayer, Preliminary Treatise on Evidence, at 351-52 (1898).]

See also Morgan, Presumptions, 12 Wash.L.R. 255, 255 (1937).

6 . It is the suggestion that there must be a showing of maternal unfitness that has spawned one of the most unfortunate aspects of the presumption — the attack by the father upon the character and conduct of the mother, an attack which necessarily aggravates the acrimony between the parents, and can only be to the detriment of the child. See, e. g., Braiman v. Braiman, 44 N.Y.2d 584, 407 N.Y.S.2d 449, 378 N.E.2d 1019 (1978).

7 .Let us give a prosaic example, taken with modification from Sargent v. Massachusetts Acc. Co., 307 Mass. 246, 249, 29 N.E.2d 825, 827 (1940). See also the discussion of this case in Ball, The Moment of Truth, Probability Theory and Standards of Proof, 14 Van.L.Rev. 807, 822-23 (1961). Suppose we are told that according to one study, 99% of the cars in the United States are black. We may have serious misgivings about the statistic because it is based on an arguably skewed sample. But let us assume, for now, that the study had some validity. If, then, we have no other information as to what color a given car is, we should guess it was black. But suppose instead, we had a car before us, and we closed our eyes and made a guess based on the probabilities. Truly by proceeding in this manner, we would guess correctly more often than not. It is equally true however, if we opened our eyes we could make a more accurate determination.