Appeals from the Superior Court of the District of Columbia. (DRB130-05) (Hon. Jerry S. Byrd, Trial Judge).
The opinion of the court was delivered by: Schwelb, Senior Judge
Before GLICKMAN and FISHER, Associate Judges, and SCHWELB, Senior Judge.
Opinion of the court by Senior Judge SCHWELB.
Concurring opinion by Senior Judge SCHWELB at p. 24.
On December 21, 2005, following an evidentiary hearing, the trial judge awarded legal custody of N.J.C., then ten years of age, and his younger brother, R.B.C., then aged seven, to their father, N.C. The boys' mother, P.F., appeals, claiming primarily that in determining the best interests of the children, the trial judge failed to accord appropriate weight to the father's physical abuse of the mother, which was reflected in the judge's finding in an earlier proceeding that the father had committed two intrafamily offenses against her. The father responds that there is ample support in the record for the trial judge's finding that the award of custody to him was in the boys' best interest; that there was no legal error; and that the judge's ruling constituted a sound exercise of his discretion.
The decision that the trial judge had to make was by no means an easy one, for there is evidence that would support an award of custody to either parent. Indeed, in her Reply Brief, the mother explicitly disclaims any suggestion that "a trial court, applying the correct legal standard, would be compelled to award custody to [the mother] over [the father]." (Emphasis added.) Rather, the mother requests a remand with directions to the trial judge to apply what she claims to be the correct legal standard and, in particular, to accord appropriate weight to the District's statute-based policy of disfavoring an award of custody or visitation rights to a parent who has committed an intrafamily offense.
In his order awarding custody to the father, the trial judge expressly found that the father committed two intrafamily offenses, and he cited the applicable statutory provisions, which are discussed infra in Parts II A and II B of this opinion. Nevertheless, for the reasons stated below, we cannot be confident that the judge gave the requisite consideration to the substantial connection, explicitly recognized by our legislature, between the presence in a family of spousal abuse and the determination as to which parent should be awarded custody.
In addition, the trial judge made no express mention of the uncontradicted evidence that both boys wished to live with their mother. Further, in rejecting the recommendation of the boys' guardian ad litem (GAL) that the boys be placed in the custody of the mother, the judge relied in part upon a ground that was clearly erroneous. Finally, we conclude that the trial judge erred in denying the mother, who was proceeding in forma pauperis, free transcripts of the trial court proceedings, for we cannot agree with the judge's view that the mother had failed to show the existence of any substantial question on appeal.
The mother and father of the two boys whose custody is at issue met in the spring of 1992. They became romantically involved, but they never married. In November 1994, the mother moved into the father's home in northwest Washington, D.C., and she lived there until August of 2004 with the father and the couple's two sons. During the time period that the mother and father were together, the father, a contractor, was the primary breadwinner. The mother remained at home and cared for the children.
The relationship between the mother and the father was somewhat stormy, and the two of them disagreed on several aspects of their children's upbringing. The mother insisted that the boys be schooled at home, rather than at a public school. Although he initially consented to the home-schooling and to the mother's serving as their teacher, the father subsequently expressed apprehension that the home-school curriculum lacked structure and that it failed to provide sufficient emphasis on academic subjects. In addition, the father became concerned because the mother was still breast-feeding R.B.C. (the younger boy) when he was five years old and because R.B.C. was not yet toilet-trained at the age of seven.
On August 16, 2004, the mother filed a petition for a civil protection order (CPO). In her petition, she alleged that on three separate occasions, the father committed acts of domestic violence against her. A Superior Court judge issued a temporary protection order (TPO) in which he awarded the mother temporary custody of the children, with no visitation rights for the father pending a hearing on the request for a CPO. In the TPO, the judge ordered the father to refrain from contacting the mother and to stay at least 100 feet away from the mother, from her home, and from the house of a friend with whom the mother was staying. A hearing date was set, but the judge dismissed the case for want of prosecution after neither of the parties appeared.
In August 2004, shortly after she secured the temporary protection order, the mother left the District of Columbia for her family's home in Wisconsin, taking her sons with her. The mother did not inform the father that she was going to leave the District with the children and, following her arrival in Wisconsin, she refused to disclose their whereabouts. On January 6, 2005, a warrant was issued for the mother's arrest on felony parental kidnapping charges. On January 14, 2005, the father filed a complaint seeking custody of the children and an emergency motion for temporary custody. Following an ex parte hearing held on the same day, the trial judge issued an order awarding the father temporary custody of the boys. On her return to the District of Columbia, the mother was arrested and charged with felony parental kidnapping, but a nolle prosequi was entered on April 14, 2005. From January 2005 until the present, the children have been in the father's custody. After the father was granted temporary custody, he enrolled the children at a local public school.
In February 2005, the mother filed a motion to reinstate her petition for a CPO, and on May 18, 2005, the trial judge held an evidentiary hearing on the petition. The judge heard testimony from both parents, and he admitted into evidence photographs of the mother showing that she had a black eye and bruising on her arm.*fn1 Based on his consideration of the testimony from the parties and the photographs, the judge found by a preponderance of the evidence that the father committed intrafamily offenses against the mother on June 15 and August 16, 2004.*fn2 The judge specifically found that during the June 15 incident, the father pulled the mother down a hallway in their home and that, using his closed fist, he punched her in the face and on the arm. The father's attack left the mother with a black eye and bruises, as depicted in the photographs. The judge found that in the August incident, the father slapped the mother in the face and shouted at her for over an hour.*fn3 The judge granted the mother's petition for a CPO, but he ordered that the children remain in the father's custody. The mother was granted unsupervised visitation rights.
On October 5 and 6, 2005, the same judge presided at the trial of the parents' competing claims for custody. The judge took judicial notice of the prior CPO proceedings.
The mother and father both testified, as did several other witnesses.*fn4 The father categorically denied that he had ever assaulted or abused the mother, but the judge obviously disbelieved his testimony on this point.
On November 10, 2005, the GAL issued an eleven-page report in which he examined the factual and legal issues relating to the best interest of the two children. In summary, the GAL recommended as follows:
Based on my review of the evidence, the statutory factors to be considered in determining the best interest of the children, and relevant case law, it is my conclusion that the best interests of the two children will be served by [the mother] having sole legal custody of the children, with substantial visitation for [the father].
On December 21, 2005, the trial judge issued an order in which he awarded permanent legal and physical custody of the children to the father, with visitation rights for the mother. The judge noted that the statutory presumption*fn5 that joint custody is in a child's best interest does not apply when the court has found that a parent seeking joint custody has committed an intrafamily offense. The judge also recognized, quoting D.C. Code § 16-914 (a-1) (2001), that when a judicial officer has found that a parent seeking custody has committed an intrafamily offense, "any determination that custody . . . is to be granted to the abusive parent shall be supported by a written statement by the judicial officer specifying factors and findings which support that determination." Beyond this, however, the judge did not expressly address the question whether, and to what extent, a finding that a parent had committed intrafamily offenses affected his claim for sole custody.
After discussing the evidence, the judge found that from the time that the father was awarded temporary custody in January 2005, he "ha[d] been an exemplary parent, consistently making decisions with the best interest of the minor children in mind." The judge found that the boys had not been abused by the father, that the father was a fit and proper ...