Appeal from the Superior Court of the District of Columbia. (Hon. Harriett R. Taylor, Trial Judge)
Before Steadman, Schwelb, and Farrell, Associate Judges. Opinion for the court by Associate Judge Farrell. Concurring opinion by Associate Judge Schwelb.
The opinion of the court was delivered by: Farrell
FARRELL, Associate Judge: In this appeal from a judgment of divorce, award of child custody and support, and distribution of property, appellant's primary contention, vigorously maintained, is that the trial Judge abused her discretion in granting sole legal and physical custody of the two children to appellee, the father, subject to liberal visitation by the mother. The Judge reached this decision after an approximately two-week trial and entry of some 26 pages of written findings of fact and Conclusions of law addressing the custody issue alone. We reject the assertion of some amici that the Judge's reasoning is infected with gender stereotyping, and in general we reject appellant's argument that the Judge failed properly to consider the relevant statutory factors or made errors of fact that undermine the validity of her exercise of discretion. Only one shortcoming in the Judge's analysis leaves us unable to affirm the judgment at this time: her failure adequately to resolve factual issues concerning appellant's claims of physical assault by appellee, some of which had led to a court-issued Temporary Protection Order (later continued by the parties' consent) at the time appellant filed for divorce. We therefore remand the case for further proceedings devoted to this issue. *fn1
At trial the parties (hereafter Prost and Greene) agreed upon little except the chronology of their marriage and the birth of their children, their respective employment histories, and their separation. The couple met in 1980 and were married in 1984. The first child, Matthew, was born in 1987; the second, Jeffrey, in 1990. From 1985 until October 1992, the couple lived in a home which they jointly purchased in the District of Columbia.
At the time they married, Prost was employed as Assistant Solicitor for the National Labor Relations Board (NLRB). Greene was the executive director of the National Education Association Staff Organization (NEASO). In April 1988 Greene left NEASO to become executive director of Council 20 of the American Federation of State, County and Municipal Employees (Council 20). In March 1989, Prost became Chief Minority Labor Counsel of the Senate Labor and Human Resources Committee. In September 1990 Greene quit his job with Council 20; thereafter he held a temporary position with the Peace Corps, then served briefly as a consultant or contractor to the Peace Corps, and worked for short periods as a field examiner with the NLRB and under a contract with the Federal Mediation and Conciliation Service. Except for these brief intervals, Greene was unemployed from the time he left Council 20 until March 1993, when he became assistant executive director of the American Federation of Television and Radio Artists and Screen Actors Guild (AFTRA). Meanwhile, in January 1993, Prost moved from the Senate Committee on Labor and Human Resources to the Senate Judiciary Committee, where she became chief counsel for the then-minority party.
By December 1991 Prost had consulted a lawyer about divorcing Greene, and by January 1992 the parties had agreed to divorce, but also to delay the divorce until Greene found employment. By early 1992 they had moved into separate bedrooms in the family house. On October 24, 1992, Prost left the house with the children, who were then five and two years old respectively. After consulting with her attorney, she sought a Civil Protection Order (CPO) in the Superior Court, receiving a Temporary Protection Order (TPO) the same day. Pursuant to the TPO, Greene left the house and Prost returned to it with the children. On October 29, 1992, Prost filed suit for divorce. At a CPO hearing in December 1992, the parties agreed to extend the TPO for one year, thus leaving custody of the children with Prost but with allowance for visitation by Greene. This order remained basically in effect through the trial, which began in December 1993. *fn2
II. The Trial Court's Opinion
The parties presented often sharply contradictory testimony about their relationship with one another and with the children. The trial Judge made detailed findings of fact attempting to resolve this conflicting evidence. The Judge found that, in general, "both parents have been responsible for and provided care for their children." Specifically, except during the first several months of Matthew's life, Prost and Greene were "full and equal caretakers of Matthew from his birth [in 1987] through at least February 1989." During this time they placed Matthew in a daycare facility across the street from Prost's office and commuted to and from work together, dropping him off and picking him up on the way.
A change in the couple's relationship began in approximately March 1989, when Prost left the NLRB for her job with the Senate, a position which the Judge found "was much more demanding than the NLRB had been, in terms of both time and energy." Prost "now worked much longer hours, and began bringing Matthew home in the evenings, alone." This custom persisted, the Judge found, with the result that since "at least March 1989" Greene "has been the more nurturing parent of the children, assuming the greater portion of the parental obligations and handling the daily details necessary to provide for the children's physical and emotional well-being and development." The Judge based this finding, in significant part, on the testimony of Stephanie Werner, the parties' au pair for approximately thirteen months in 1991 and 1992. The Judge found Werner's testimony "credible" and summarized it as follows:
testified that generally returned home from work between 7 and 8 p.m. Stephanie recalled only 4 or 5 instances, during the year that she lived with the parties, that the whole family had dinner together, and that was when Gary Palmquist [a friend of the couple] joined them. (Even then, Stephanie and Palmquist agree, cooked and served the meals and cleaned up afterwards.) Otherwise always ate dinner alone and very late at night -- often, while sitting on the kitchen floor, with her plate on the floor, talking on the telephone or writing while she was eating. About once a month, Stephanie reported, came home early, to cook dinner for the children; this was always treated as the special event that it was although, even on those occasions, usually ate standing at the stove or elsewhere in the kitchen, rather than at the table with the children. (Footnotes omitted).
The Judge also found that Greene, "because family is of prime importance to , . . . has been very involved in the children's activities and has made them a priority in his life," whereas Prost "is simply more devoted to and absorbed by her work and her career than anything else in her life, including her health, her children and her family" (footnotes omitted). With respect to Greene, the Judge cited two employment decisions (turning down a job in 1990; taking his present job despite a pay reduction) which both stemmed from his desire to spend as much time as possible with the children. *fn3 Altogether, she concluded, Greene "has prioritized the care and well-being of his children, striking a delicate balance between parenthood and his career." With regard to Prost, the Judge found that
many positive contributions to the family unit . . . have been limited by her employment and personal pursuits. Her career choice of demanding jobs that require her to work late nights and many weekends necessarily cuts into the time available for her family. [Prost's] involvement in the children's lives takes place around her long work day and, even then, her devotion to her job and/or her personal pursuits often takes precedence over her family. (Emphasis in original; footnote omitted). *fn4
The Judge also found that Prost "is much more emotionally volatile and unstable than ," having displayed "intense emotional reactions and . . . demonstrated insensitivity" to (among other things) Greene's periods of unemployment and resultant depression.
Of particular concern to the Judge was the "rigidity" Prost had shown during the past year and a half (when she had sole custody) toward Greene's right of visitation. This was important because, despite a marriage and separation marked increasingly by a "high level of stress, tension and animosity between the parties," both parents "have provided a supportive, loving, structured and nourishing environment in which the children may thrive," so that "it is overwhelmingly in the children's best interests that they spend substantial time with both their parents . . . ." *fn5 Yet the Judge cited repeated instances of "inflexibility" by Prost which "bode ill for both the atmosphere and the extent of the time that she would permit the children to spend with their father (regardless of any court order). . . ." *fn6
In sum, while concluding that the two children "are charming, bright and healthy youngsters who love their parents and each other," and that regular interaction with both parents would be important to their "development into independent, well-rounded, confident adults," the Judge found by a preponderance of the evidence that the best interests of the children, together and separately, *fn7 would be served by granting sole custody to Greene but at the same time liberal visitation rights to Prost.
Custody determinations, not just in their extreme forms of neglect and termination of parental rights decisions, are among the most difficult a trial Judge must make. Former Chief Judge Hood keenly understood the difficulty:
Out of a maze of conflicting testimony, usually including what one court called a tolerable amount of perjury," the Judge must make a decision which will inevitably affect materially the future life of an innocent child. In making his [or her] decision the Judge can obtain little help from precedents or general principles. Each case stands alone. After attempting to appraise and compare the personalities and capabilities of the two parents, the Judge must endeavor to look into the future and decide that the child's best interests will be served if committed to the custody of the father or mother. He starts with the premise . . . that the best interests of the child would be served by living in a united home with the affection, companionship and care of both father and mother, but that possibility has been eliminated before the case reaches the ...