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Sampson v. Johnson

March 25, 2004

KYLE J. SAMPSON, APPELLANT,
v.
ELIZABETH JOHNSON, APPELLEE.



Appeals from the Superior Court of the District of Columbia (DR1296-99) (Hon. Zoe Bush, Trial Judge)

Before Steadman, Schwelb and Ruiz, Associate Judges.

The opinion of the court was delivered by: Schwelb, Associate Judge

Argued February 24, 2004

Kyle J. Sampson, the father of Myriam Sampson, born December 18, 1998, has appealed from the following orders of the trial court:

1. an order dated February 17, 2000 (Order No. 1), in which the trial judge authorized Myriam's mother, Elizabeth Johnson, to move with the child to Portland, Oregon, and also ordered that visitation with Myriam by the father be suspended;

2. an order dated April 18, 2000 (Order No. 2), in which the judge denied a pro se motion, filed by the father, to modify custody and visitation in light of the change of circumstances brought about by the mother's move with Myriam to Oregon; and

3. an order dated November 2, 2000 (Order No. 3), in which the judge dismissed the action on forum non conveniens grounds. *fn1

We conclude that the cumulative effect of these orders has been to deny the father both visitation with his daughter and a readily available forum in which the issues raised by this significant curtailment of his rights as a parent can be addressed. Denial of visitation rights to a parent is appropriate only in extreme cases in which such a measure is necessary to avoid harm to the child, and the trial judge made no findings which would support such a denial. We are unable to determine from the judge's findings whether the long-term denial of visitation was intentional and, if it was, what the judge's justification was for effectively denying the father any contact with his child. Accordingly, we vacate Order No. 2 and Order

No. 3, and we remand the case for additional (and updated) findings of fact and conclusions of law and for appropriate disposition of the dispute consistent with this opinion and with the trial court's findings and conclusions on remand.

I. THE TRIAL COURT PROCEEDINGS

A. Background.

Mr. Sampson and Ms. Johnson were married near Portland, Oregon, in January 1998. During the first year of their marriage, the couple lived briefly in Qatar. Ms. Johnson then returned for several months to her former home in Oregon. In September 1998, she rejoined her husband, who had moved to Washington, D.C. Myriam was born in Washington on December 18, 1998.

In April 1999, when Myriam was approximately four months old, her parents decided to separate. On April 20, 1999, the mother filed a pro se complaint seeking custody of Myriam.*fn2 The mother also moved with Myriam to Fayetteville, North Carolina, to stay with her mother and stepfather.

The parties agreed, and the court ordered, that the mother would have custody of Myriam pendente lite and that there would be weekly visitation with the father. On August 10, 1999, the judge signed a consent order which required each parent to travel to the other parent's home every second weekend. On October 27, 1999, the judge ordered that visitation was to proceed pursuant to a revised schedule. Under the new arrangement, the father was to travel to the mother's home three times a month, while the mother and Myriam were to visit the father once a month. The judge also ordered the father to pay $587 per month for Myriam's support. *fn3

During the hearing on October 27, 1999, the father, who was at that time appearing pro se, expressed concern that the mother was planning to move with Myriam to the mother's original home in Oregon. The father orally requested "some type of restriction on [the mother's] taking the baby back to Oregon at this time, or moving the baby more than 500 miles from the District, without court permission." Upon ascertaining that the mother was contemplating a move to Oregon, the judge told the mother that she must obtain the court's permission before moving the child from her current home.

B. The Mother's Motion for Temporary Relocation.

In January 2000, the mother filed a Motion for Temporary Relocation, requesting that she and Myriam be permitted to move to Portland, Oregon, because the mother's own mother and stepfather (Myriam's maternal grandmother and step-grandfather) were about to return to their home in that city. A hearing was held on the mother's motion on February 17, 2000. The father filed an opposition to the motion, but he did not appear at the hearing; he later explained that his plane from Dubai was delayed. The mother took the stand and described her extensive family connections and support in the Portland area, where she had lived since she was three years old. Although the motion was styled as one for "temporary" relocation, the mother made it clear during her testimony that she proposed to live in Portland indefinitely.

At the February 17 hearing, the father's attorney, who had previously filed a motion to withdraw, elected not to cross-examine the mother. The attorney did ask the court "to take into consideration [that] Oregon is a substantially longer distance from the District of Columbia than Fayetteville, North Carolina, and also [to] take into consideration the visitation." Counsel pointed out that, under the prior order, the mother was to bring Myriam to Philadelphia, where the father was apparently residing at the time, and she inquired "how the court intends to deal with that issue." The judge responded that "I'm going to vacate it," evidently referring to the visitation order, but she provided no further ...


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