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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 21-FM-134
JL.B., APPELLANT,
V.
L.B. and M.S., APPELLEES.
Appeal from the Superior Court of the District of Columbia (2011-DRB-627)
(Hon. Steven N. Berk, Trial Judge)
(Argued September 15, 2022 Decided December 15, 2022)
Massiel Leiva, with whom Donald P. Salzman, Annamaria Kimball, and Alexis Alvarez were on the brief, for appellant Jl.B.
No brief was filed for appellees L.B. and M.S.
Melissa Colangelo, with whom Krystal Montgomery was on the brief, as guardian ad litem representing the interests of Ja.B.
Sasha Drobnick, Elizabeth Vogel, Joshua L. Richardson, and Caitlin M. Kasmar filed a brief for the Domestic Violence Legal Empowerment and Appeals Project as amicus curiae in support of appellant Jl.B.
Before MCLEESE and DEAHL, Associate Judges, and RUIZ, Senior Judge. 2
DEAHL, Associate Judge: This custody dispute concerns Ja.B., who is now
fourteen years old. The conflict is largely between Ja.B.’s mother, Jl.B., and his
grandmother, L.B., though Ja.B.’s father, M.S., is also involved. Jl.B. was twenty
years old when she had Ja.B. in 2008, and she enlisted her mother L.B. to help raise
him. M.S. was largely out of the equation at that time. While the custody
arrangement was somewhat variable in the years that followed, by 2016, Jl.B. and
L.B. had reached an agreement under which they shared roughly equal physical
custody of Ja.B.: (1) L.B. had Ja.B. on school days; (2) Jl.B. had Ja.B. on weekends
and vacations, including the long summer vacation; and (3) M.S. had a weekly visit
with Ja.B. That was their arrangement for several years, and Ja.B. seemed to thrive
under it.
Jl.B. sought to modify that custody arrangement in 2019 and moved for sole
legal and physical custody of her son. After several days of trial, the court denied
that request and initially issued an order preserving the status quo, stressing Ja.B.’s
success under the existing arrangement and his need for continuity. But shortly after
the court issued that order, Jl.B.’s husband, J.H., physically attacked Jl.B. in Ja.B.’s
presence. Ja.B.’s guardian ad litem asked the court to reopen the evidence and
reconsider its order in light of that incident and its effects on Ja.B. The court granted
that request and, after hearing an additional day of testimony, amended its order 3
substantially, stripping Jl.B. of all custody save for two supervised visits with Ja.B.
per month. The court also amended its order to grant joint legal custody to M.S. and
L.B.
Jl.B. now appeals that decision. She argues that the trial court (1) erred in
concluding that the statutory presumption favoring parental custody had been
rebutted, see D.C. Code § 16-831.05(a); (2) violated the statutory prohibition against
using the fact that a parent has been the victim of domestic violence in determining
the parental presumption had been rebutted, see id. § 16-831.07(c); and (3) abused
its discretion in applying the “best interests of the child” factors when fashioning the
current custody arrangement, see id. § 16-831.08(a). We disagree with Jl.B. on the
first point and conclude that any error as to the second point was harmless where the
statutory presumption was rebutted prior to and independent of the domestic abuse
incident and its aftermath. We agree with Jl.B. on her third point, however, and we
therefore vacate the trial court’s custody order and remand for further proceedings.
I.
Ja.B. was born to Jl.B. and M.S. in 2008. For the first eight years or so of his
life, Ja.B. and his mother both lived at L.B.’s house in Northwest D.C., though there
were stretches where L.B. would kick Jl.B. out for being “disrespectful and 4
belligerent.” While the trio lived together, L.B. and Jl.B. would both care for Ja.B.,
though the majority of parenting responsibilities seemed to fall on L.B. during the
early years, as Jl.B. finished her schooling. In 2011, L.B. and Jl.B. agreed to share
joint legal and physical custody of Ja.B., and L.B. sought a court order to that effect.
The court—by all accounts, erroneously—awarded L.B. sole legal and physical
custody of Ja.B. Jl.B. has since filed a series of motions to modify that erroneous
custody order, to no avail. Her earliest request to modify the custody order, made
mere months after the erroneous order issued, asked the court to give her joint
custody of Ja.B. That request was denied because Jl.B. apparently failed to properly
serve her motion on the requisite parties.
Jl.B. again tried to modify the custody order in 2016, by which point she had
married J.H. and moved out of L.B.’s house, though Ja.B. continued to live with L.B.
This time Jl.B. sought sole legal and physical custody of Ja.B. After mediation, Jl.B.
and L.B. agreed that Ja.B. would live with L.B. during the school year and with Jl.B.
on weekends and school breaks (a roughly even split of the calendar year). M.S. did
not take part in the mediation, but Jl.B. and L.B. agreed that he would continue his
established practice of visiting Ja.B. about once a week. 5
Ja.B. was happy with this 2016 arrangement and thrived under it. He attended
school near L.B.’s house in Northwest D.C., where he got good grades and was on
his school’s track and field and cross country teams. He had many friends, and some
of his teachers described Ja.B. as their “best student.” L.B. tended to Ja.B.’s
education: she helped him with his homework, communicated with his teachers, and
attended parent-teacher conferences. Ja.B. liked spending time with both his parents
and his grandmother. He also enjoyed spending time with his maternal and paternal
half-sisters. All in all, Ja.B. testified that he “like[d] the way that things are” under
the arrangement.
But not everybody was content with it. Jl.B. still wanted sole custody of her
son, and in 2019, she again sought a modification of the controlling custody order
and requested sole legal and physical custody of Ja.B. Animating her desire for sole
custody is the fact that Jl.B. has fraught relationships with both L.B. and M.S. and
doubts their abilities as caregivers; M.S. was notably convicted of assaulting Jl.B.
while she was pregnant with Ja.B. L.B. and M.S., who are on better terms with one
another, both opposed the requested modification. The case went to trial, and the
court appointed a guardian ad litem to represent Ja.B.’s interests. 6
The guardian ad litem called Jl.B., L.B., and M.S. as witnesses, and
questioned each of them about their suitability as parents. In response to those
questions, Jl.B. acknowledged that she has been diagnosed with bipolar disorder, but
denied that she was currently affected by the disorder and noted that she had not
been on any medication since 2017. Rather, she described herself as having mood
swings that resulted from certain stressors. L.B. testified that she herself had lupus
and depression, but believed that she could effectively manage those conditions and
that neither affected her day-to-day functioning. She also explained that she suffered
a heart attack in 2018 and took medication and regularly saw her cardiologist. M.S.
testified that he had no relevant mental or physical health issues. All three testified
that they had positive relationships with Ja.B., which Ja.B. confirmed in his own
testimony.
A court-appointed psychologist, Dr. Seth King, also testified about the parties’
relationships with Ja.B. and their abilities to co-parent. Dr. King described Ja.B.’s
relationships with Jl.B., L.B., and M.S. in generally positive terms and expressed
“[n]o major concerns” about any of their abilities to care for Ja.B. Dr. King noted
that the conflict between Jl.B., on the one hand, and L.B. and M.S., on the other,
limited “their ability to work collaboratively together.” He further opined that if
Jl.B. were given sole legal and physical custody of Ja.B., it was his impression that 7
Jl.B. would cut off all contact between L.B. and Ja.B., which he thought would be
detrimental to Ja.B.’s well-being. Dr. King also expressed concerns about Jl.B.’s
diagnosed but untreated bipolar disorder, which he noted could lead to periods where
her “emotional functioning” and “emotional stability” were compromised.
After the hearing, the court issued a detailed order in May 2020 that essentially
maintained the 2016 custody arrangement. It ordered that while L.B. would retain
sole legal custody of Ja.B., L.B. and Jl.B. would share joint physical custody—with
Ja.B. spending a roughly equal number of days with each of them—and M.S. would
retain his weekly visitation. In reaching that result, the court acknowledged the
statutory presumption favoring custody with parents, D.C. Code § 16-831.05(a), a
presumption that operated against granting L.B. any amount of custody. But it found
the presumption had been overcome in two statutorily enumerated ways: (1) that
excluding L.B. from the custody arrangement “would be detrimental to the physical
or emotional well-being of” Ja.B., D.C. Code § 16-831.07(a)(2); and (2) “[t]hat
exceptional circumstances . . . support[ed] rebuttal of the [parental] presumption,”
id. § 16-831.07(a)(3). Having found the parental presumption rebutted, the court
concluded that it was in Ja.B.’s best interests to maintain the status quo, keeping him
in his current home with L.B. during the school year, but still allowing him to spend 8
substantial time with both his parents. The court’s reasoning was largely based on
Ja.B.’s considerable success and happiness under the existing arrangement.
About two weeks after the court issued that order maintaining the status quo,
Jl.B. was physically beaten in her own home by her husband, J.H., while Ja.B. was
staying with her. Following this incident, the guardian ad litem filed a motion to
reopen trial and amend the judgment in light of new evidence. See Super. Ct. Dom.
Rel. R. 59(a)(2). The court held another evidentiary hearing, in which L.B., Jl.B.,
and M.S. testified about the battery and its aftermath. Ja.B. did not testify or
otherwise indicate that his preference for maintaining the status quo had changed.
The credited testimony was as follows.
On the night of the battery, Ja.B. texted M.S. for help stating that “stepdad
was beating on” Jl.B. M.S. immediately called Ja.B. and could hear J.H. and Jl.B.
in the background, both yelling, screaming, and cursing. J.H. eventually snatched
the phone from Ja.B.’s hand and ended the call. M.S. then called the police, and
when they arrived, Ja.B. was physically unharmed, but appeared afraid and had
“blood all over his jeans,” apparently from trying to break up the fight. L.B. and
M.S. both arrived on the scene after the police, and Jl.B. either told Ja.B., or told
L.B. within Ja.B.’s earshot, that Ja.B. was not welcome back into her house because 9
he had called M.S. for help. She repeated that remark in a text to M.S. the following
morning. This incident appeared to have shaken Ja.B. For a few weeks afterward,
he seemed unusually “quiet and withdrawn,” and he told L.B. he wanted to enroll in
therapy.
J.H. was arrested and criminally charged. The court initially ordered J.H. to
stay away from Jl.B., though the following month that order was modified to simply
direct him not to abuse or harass her. Jl.B. testified that J.H. was not welcome back
into her home unless he completed a domestic violence program. At the time Jl.B.
testified, J.H. had not yet begun that program. Yet L.B. testified that she had seen
J.H. at Jl.B.’s house in the months that immediately followed the beating. L.B. also
testified that this was not the first or last time J.H. had beaten Jl.B.: L.B. claimed
that there had been “several” “physical altercations” between the two earlier in 2020
and that additional “acts of violence” had occurred since the incident, though she did
not elaborate on the basis for her belief.
The court issued a new custody order in January 2021, superseding the May
2020 order. The court largely incorporated all of its findings of fact and reasoning
from the May 2020 order into this new order, including its persistent themes that
Ja.B. was thriving and happy under the status quo custody arrangement. The only 10
material change in the court’s order was that it detailed the incident of domestic
violence and its aftermath, which led the court to then drastically alter the order’s
bottom line. Rather than maintaining the status quo, the court granted joint legal and
physical custody to L.B. and M.S., and granted Jl.B. just two visits per month—or
twenty-four per year—all of which were to be supervised. Jl.B. now appeals that
order.
II.
In the District of Columbia, there is a strong statutory presumption, with
“constitutional underpinnings,” that parents should have custody of their children.
W.H. v. D.W., 78 A.3d 327, 338 (D.C. 2013) (citation omitted). Under the District’s
third-party custody statute, D.C. Code §§ 16-831.01 to .13, a non-parent may be
awarded custody only when the parents consent to it or this statutory presumption is
rebutted by clear and convincing evidence showing that (1) “the parents have
abandoned the child,” (2) “custody with a parent is or would be detrimental to the
physical or emotional well-being of the child,” or (3) other “exceptional
circumstances . . . support rebuttal of the presumption favoring parental custody.”
Id. § 16-831.07(a). If the statutory presumption is rebutted through one of those
showings, then a court may award some degree of custody to non-parents only to the 11
extent it finds that it “is in the child’s best interests.” Id. § 16-831.06(a)(2); see also
id. § 16-831.04(a) (explaining that the ordered custody may include joint custody
between parents and non-parents or any “other custody arrangement the court
determines is in the best interests of the child”).
Jl.B. challenges the trial court’s ruling at both steps of its analysis. That is,
she first argues that the statutory presumption favoring parental custody was not in
fact rebutted, both because the evidence did not suffice to rebut it and because the
trial court committed legal error when it used the fact that she was abused against
her, contrary to a statutory prohibition against doing just that. See D.C. Code
§ 16-831.07(c). She next argues that, even if the parental presumption had been
rebutted, the trial court abused its discretion in stripping her of virtually all of her
custody rights. In evaluating these arguments, we generally will reverse a trial
court’s custody order only if we determine that it abused its discretion, Macklin v.
Johnson, 268 A.3d 1273, 1279 (D.C. 2022), though Jl.B.’s argument that the trial
court violated D.C. Code § 16-831.07(c) by counting the fact that she had been
abused against her is a claim of legal error, which we review de novo.
We consider each of Jl.B.’s arguments in turn. 12
A.
A parent in a custody dispute with a third party is entitled to a presumption
that “custody with the parent is in the child’s best interests.” D.C. Code §
16-831.05(a). This presumption protects a parent’s “constitutionally-protected right
to care for, have custody of, and manage their children.” W.H., 78 A.3d at 338. A
third party who seeks some degree of custody “bear[s] the burden of rebutting the
parental presumption by clear and convincing evidence.” D.C. Code § 16-831.06(b).
At the outset, we note that the parties all interpret this statutory presumption
as an all-or-nothing inquiry, protecting parents’ right to sole custody, but with no
residual effect once the presumption of sole custody in the parents is rebutted. That
is not the only way to read the statutory presumption, however. It might be
interpreted as having residual force even if a third party can overcome the
presumption of sole custody in the parents, so that it effectively maximizes the
degree of parental custody so long as the parents are able and willing to care for the
child to that degree, that degree of custody is not detrimental to the child’s physical
or emotional well-being, and exceptional circumstances do not counsel against that
degree of parental custody. See D.C. Code § 16-831.07(a). Under this alternative
view, every incremental intrusion into parents’ custody rights would need to be 13
justified via rebuttal of the parental presumption. No party advances that view,
however, and so we proceed with the parties’ shared understanding that the parental
presumption has no such residual effect. 1
L.B. argues that the parental presumption of sole custody was rebutted in two
statutorily enumerated ways: (1) that “custody with a parent is or would be
detrimental to the physical or emotional well-being of the child,” and (2) that
“exceptional circumstances . . . support rebuttal of the presumption favoring parental
custody.” D.C. Code §§ 16-831.07(a)(2)-(3). The trial court made both of those
determinations in its initial May 2020 order. The trial court reasoned that the
parental presumption had been rebutted based on the fact that L.B. “has been
[Ja.B.’s] primary caretaker for nearly a decade” and “[h]er house has been his
anchor, providing him with safety and stability.” The court found that living with
L.B. has provided Ja.B. with a stable home environment in which he has been able
1 Also, the parties agree that the parental presumption applies in this case despite the fact that L.B. has technically had sole legal custody of Ja.B. since 2011 and the parental presumption usually applies only in initial custody determinations. See S.M. v. R.M., 92 A.3d 1128, 1129-30, 1137 (D.C. 2014). We likewise will not second-guess their agreement on that point, particularly in light of the unusual background in this case and the apparent error underlying that 2011 order. 14
to flourish, and that L.B. was the parental figure most “involved in the school and
known well by school personnel” and who tended to Ja.B.’s medical needs.
Meanwhile, the court found that Jl.B.’s untreated bipolar disorder had
“interfered with her ability to work with others for [Ja.B.’s] wellbeing.” It noted that
her “interactions with [Ja.B.’s] school have been combative and accusatory” and her
interactions with M.S. and L.B. “are characterized by cursing, threatening, name-
calling, and blaming.” Indeed, Jl.B. described M.S. and L.B. as her “triggers.”
Crucially, the trial court concluded that this “evidence raises concerns about whether
and how [Jl.B.] would keep [M.S.] and [L.B.] involved in [Ja.B.’s] life if she were
his full-time caregiver.” Those concerns were supported by Dr. King’s credited
testimony that Jl.B. seemed inclined to cut L.B. out of Ja.B.’s life. The court
concluded that this evidence constituted exceptional circumstances that supported
rebuttal of the parental presumption, and that it also showed that sole custody with
Jl.B. would be detrimental to Ja.B.’s emotional well-being. See D.C. Code §
16-831.07(a)(2), (3).
We discern no abuse of discretion in those conclusions. The evidence
supports the trial court’s findings that L.B. had parented Ja.B. throughout his life,
that she had done so with great success, and that Jl.B. was not committed to keeping 15
L.B. in Ja.B.’s life. It can fairly be described as exceptional circumstances, as the
statute envisions, where a non-parent has essentially taken on the lead parenting role
for more than a decade. And it is no abuse of discretion to conclude that cutting that
primary and long-term caregiver out of the child’s life would be detrimental to the
child’s physical and emotional well-being. The trial court acted within its discretion
in finding that the parental presumption had been rebutted in its May 2020 order.
Jl.B. also argues that the trial court erred when, in its January 2021 order, it
further considered the fact that she was abused as a mark against her in finding the
parental presumption had been rebutted. We conclude that any error on that score
was harmless, as the trial court had found the parental presumption rebutted
independent of that abuse and its aftermath in its May 2020 order—reasoning that it
repeated in its January 2021 order—and we have already held that the trial court
acted within its discretion in doing so. Nonetheless, some aspects of the trial court’s
revised order seemed to run afoul of the statutory prohibition that Jl.B. highlights,
and because we have never previously discussed that statutory provision, we pause
to explain why that is so.
A trial court in the District “shall not use the fact that a parent has been the
victim of an intrafamily offense against [them] in determining whether the 16
presumption favoring parental custody has been rebutted.” D.C. Code §
16-831.07(c). Jl.B. and amicus curiae, the Domestic Violence Legal Empowerment
and Appeals Project (DV LEAP), make compelling arguments that the court violated
this prohibition when it drastically reduced her custody in seeming response to her
being abused.
For instance, while the court stated that it did not consider the “intrafamily
offense as the sole basis for concluding that the parental presumption ha[d] been
rebutted” (emphasis added), that statement clearly implies that the court did consider
the fact of Jl.B.’s abuse as one factor among others in reducing her custody. The
guardian ad litem defends the trial court’s ability to do just that and asks us to
“interpret § 16-831.07(c)’s prohibition . . . to mean that a court cannot rely solely on
evidence that the parent is a survivor of domestic violence” (emphasis added). That
is not a sensible reading of the statutory language. The statute’s instruction that a
court “shall not use” the fact that a parent is the victim of an intrafamily offense in
its analysis, by its plain language, prohibits any use of that fact, whether as the sole
factor in the analysis or as one factor among many. To be sure, the trial court might
have given weight to the effects of the incident on Ja.B., or to the fact that Ja.B. was
perhaps in harm’s way and exposed to physical abuse while in Jl.B.’s custody. But
the trial court’s analysis gives us no assurance that it was carefully cabining its 17
consideration in that manner, as opposed to treating Jl.B.’s status as a victim of
domestic abuse against her in the custody calculus.
Jl.B. and DV LEAP also raise plausible arguments that the trial court drew a
series of impermissible inferences from the sole fact that Jl.B. was abused without
the necessary evidentiary support to ground those inferences. For instance, while it
would certainly be proper for a court to consider past incidents of domestic violence
as predictive evidence that it might recur, the trial court’s conclusory assertion that
there was a “risk of future incidents that imperil [Ja.B.’s] physical or mental
wellbeing” had little support in the record. The trial court made no findings about
whether J.H. continued to live with Jl.B., whether Ja.B. had even been in the same
vicinity as J.H. since the incident, or any number of other questions that would seem
necessary to establish by clear and convincing evidence that Ja.B.’s physical and
emotional well-being would be endangered by the potential for future abuse. See
D.C. Code § 16-831.07(a). In short, the trial court’s findings and reasoning were
too cursory to support its conclusion on this point.
Ultimately, because we have upheld the trial court’s reasoning that the
parental presumption had been rebutted independent of the abuse and its aftermath,
any error in violating the statutory prohibition in § 16-831.07(c) was harmless. 18
B.
We now address Jl.B.’s argument that the trial court abused its discretion
when, after concluding that the parental presumption had been rebutted, it reasoned
that limiting her custody to twenty-four supervised visits per year was in Ja.B.’s best
interests. In assessing that argument, “we first look to whether the trial court
considered ‘all relevant factors and no improper factor,’ and then we ‘evaluate
whether the decision is supported by substantial reasoning . . . drawn from a firm
factual foundation in the record.’” Macklin, 268 A.3d at 1279 (quoting In re A.M.,
589 A.2d 1252, 1257-58 (D.C. 1991)). The relevant factors that the trial court must
consider when fashioning a custody arrangement are:
(1) The child’s need for continuity of care and caretakers, and for timely integration into a stable and permanent home, taking into account the differences in the development and the concept of time of children of different ages; (2) The physical, mental, and emotional health of all individuals involved to the degree that each affects the welfare of the child, the decisive consideration being the physical, mental, and emotional needs of the child; (3) The quality of the interaction and interrelationship of the child with his or her parent, siblings, relatives, and caretakers, including the third- party complainant or movant; and (4) To the extent feasible, the child’s opinion of his or her own best interests in the matter. 19
D.C. Code § 16-831.08(a). There is no suggestion that this list of factors is
exhaustive. Rather, the “relevant factors” in any particular case will depend on the
facts of the specific custody dispute before the court. Cf. Johnson v. Washington,
756 A.2d 411, 418 (D.C. 2000) (“Child custody cases present complex factual
situations, and we necessarily rely on the trial court’s careful balancing of the various
factors that may impact the child.”). Because the trial court did not consider all
relevant factors, and because its analysis of the factors that it did consider failed to
support its conclusions, the court abused its discretion.
First, we note that the trial court seemed to give no weight to Ja.B.’s
preference in its January 2021 order. Contra D.C. Code § 16-831.08(a)(4). The
court, in both its May 2020 and January 2021 orders, found Ja.B. to be a “bright,
articulate, and mature” child who was “well-spoken and seem[ed] wise beyond his
age.” After hearing him testify, the court opined that he had his “head on straight”
and commented about how he was “[s]o thoughtful.” In short, Ja.B. was clearly
capable of expressing an informed view about what was in his best interests. And
the only evidence in the record is that, when the court asked Ja.B. “what [he’d] like
[the court] to do,” Ja.B. responded that he “like[d] the way that things are.” To be
sure, that evidence came prior to the domestic abuse incident, and the trial court
initially granted Ja.B.’s request to keep the arrangement as it had been for years. But 20
when the trial court then drastically altered the custody arrangement, it had no
evidence before it that Ja.B.’s preferences had changed, and it gave absolutely no
explanation for discarding Ja.B.’s preference or failing to make any inquiry into
whether it had changed. Of course, a court is free to disagree with a child as to what
is in the child’s best interests. See P.F. v. N.C., 953 A.2d 1107, 1117 (D.C. 2008).
But when the child is older and seemingly mature enough to express informed
preferences, a court cannot be said to have meaningfully taken their preferences into
account when it so fundamentally deviates from them without so much as an
explanation.
In addition to failing to fully consider Ja.B.’s views, the court’s discussion of
the other factors does not support its conclusion. Though the court provided some
support for reducing Jl.B.’s custody—in the form of concerns about Jl.B.’s mental
health and the potential for recurring domestic violence in her house, 2 see D.C. Code
§ 16-831.08(a)(2)—its reasoning, taken as a whole, is internally contradictory. This
is perhaps unsurprising, since the majority of the court’s reasoning in its January
2021 order is identical to its May 2020 order despite the two orders’ drastically
different bottom lines. For instance, in both orders, the court repeatedly emphasized
2 As we noted above, the court’s analysis of the risk of future domestic violence occurring and harming Ja.B. is sparse. See supra Part II.A. 21
that Ja.B.’s continuity of care and his loving relationship with Jl.B. supported
“regular, frequent” visitation with her. See D.C. Code § 16-831.08(a)(1)-(3). This
reasoning supported the court’s conclusion in May 2020 that “it [wa]s in [Ja.B.’s]
best [interests] to maintain the current custodial arrangement,” which included
“substantial parenting time” with Jl.B. But it is at odds with the court’s subsequent
decision to reduce Jl.B.’s visitation to only two supervised visits per month. That is
not “frequent” visitation and certainly does not provide “continuity” in Ja.B.’s
relationship with Jl.B., particularly when all of the visits must be supervised so that
Ja.B. can no longer spend any time alone with his mother.
Though the court expressed legitimate concerns about the impact of Jl.B.’s
mental health on Ja.B., all of the evidence relating to Jl.B.’s mental health was in the
record prior to May 2020, when the court concluded that Jl.B.’s “mental health . . .
does not support [the conclusion that] [Ja.B.]’s time with his mother be limited
further.” Jl.B.’s mental health thus cannot have formed the basis for the court’s
revised order in January 2021.
Nor was any of the reasoning that the court added to the January 2021 order
enough to cure the internal contradictions in the rest of the order. The only major
difference in the January 2021 order was the addition of a single paragraph in which 22
the court stated that “unsupervised visitation with [Jl.B.] poses a risk to [Ja.B.]’s
physical and emotional health” because of “concern[s] about ongoing domestic
violence in [Jl.B.’s] home and the potential for physical harm to [Ja.B.]” and
“concern[s] about continuing emotional harm to [Ja.B.] . . . in light of [Jl.B.’s]
decision to lash out at [Ja.B.] for seeking help.” Though these are legitimate
concerns, the court provided no analysis of the likelihood that Ja.B. would be
harmed, emotionally or physically, by domestic violence in the future. Supra Part
II.A. Nor did it consider whether Jl.B’s “lashing out” at her son may have been
mitigated by the fact that she herself had just been the victim of a violent attack. Nor
did the court attempt to square its concerns for Ja.B’s emotional and physical
wellbeing with the three other statutory factors which, by the court’s own judgment
in May 2020, all supported maintaining the status quo. This minor addition to the
court’s order cannot alone sustain its substantial modification of the custody
agreement.
In addition to erroneously reducing Jl.B.’s physical custody, the court
erroneously increased M.S.’s custody when it granted him joint legal and physical
custody with L.B. This is so for two reasons: the court failed to consider M.S.’s
conviction for simple assault against Jl.B., and its expansion of M.S.’s custody
lacked sufficient supporting reasoning. First, the court failed to consider M.S.’s 23
conviction for simple assault against Jl.B. while she was pregnant with Ja.B. Jl.B.
argues that the court was bound by the statutory requirements governing custody
disputes between parents, including that a court shall not award any custody to a
parent who has committed an intrafamily offense without a written statement
justifying that determination. See D.C. Code § 16-914(a-1). The guardian ad litem
responds that the provisions governing custody disputes between parents do not
apply to third-party custody disputes such as this one.
We need not resolve that technical dispute because the court was, in any case,
bound to consider M.S.’s intrafamily offense as a “relevant factor[]” under the third-
party custody statute. D.C. Code § 16-831.08(a). M.S.’s conviction for simple
assault against Jl.B. while she was pregnant with Ja.B. is relevant here because, as a
general principle, “[t]he law of this jurisdiction requires a judicial officer to exercise
considerable caution before granting custody or visitation rights to a parent who has
committed an intrafamily offense.” P.F., 953 A.2d at 1112. Though the court
acknowledged that M.S. had been convicted of assaulting Jl.B., it never mentioned
this fact in its analysis, let alone justified why joint custody with M.S. would be in
Ja.B.’s best interests despite this conviction. That is not to say that the court could
not grant joint custody to M.S.—only that it must explain its reasons for doing so
despite his apparent past abusive conduct. 24
Second, the trial court’s grant of joint legal custody to M.S. lacked sufficient
supporting reasoning. The court awarded joint legal custody to M.S. for the first
time in January 2021, despite the fact that no new evidence relating to M.S. had been
introduced since the May 2020 order, in which M.S. was not granted legal custody.
If the court wished to give M.S. joint legal custody, it was required, at a minimum,
to explain its reasons for doing so. See Macklin, 268 A.3d at 1279 (custody order
must be “supported by substantial reasoning . . . drawn from a firm factual
foundation in the record”); D.C. Code § 16-831.04(b) (“An order granting relief
under this chapter shall be in writing and shall recite the findings upon which the
order is based.”).
Thus, even with the high standard of deference we afford the trial court in
child custody cases, we cannot say that the trial court’s decision to reduce Jl.B.’s
visitation to twenty-four supervised visits a year and to award M.S. joint legal and
physical custody was supported by substantial reasoning. We conclude that the
court’s January 2021 custody order was an abuse of discretion. 25
III.
For these reasons, while we do not disturb the trial court’s conclusion that the
parental presumption was rebutted, we vacate the court’s January 2021 revised
modified custody order and remand for further proceedings.
So ordered.