Keith L. Cheek, Jr., Appellant
Nicole Edwards, Appellee.
Submitted October 12, 2018
from the Superior Court of the District of Columbia
(DRB-116-17) (Hon. Michael K. O'Keefe, Trial Judge)
Lane, with whom Marcia Stanford was on the brief, for
C. Maleck for appellee.
Thompson and Easterly, Associate Judges, and Ruiz, Senior
EASTERLY, ASSOCIATE JUDGE.
Keith L. Cheek challenges an order holding him in civil
contempt for violating a temporary custody order, granting to
appellee Nicole Edwards permanent sole legal and physical
custody of their minor children, and leaving his visitation
rights to Ms. Edwards's sole discretion. Mr. Cheek does
not contest the trial court's finding that he violated
the temporary custody order, but he argues that the
court's decision-in the midst of his civil contempt
hearing-to modify the permanent custody order (that had, by
then, superseded the temporary custody order) violated his
due process right to notice and an opportunity to be heard.
He further argues that the modification of the permanent
custody order was punitive in nature, and thus an
inappropriate remedy for civil contempt. Lastly, he
challenges the court's decision to delegate to Ms.
Edwards the authority to regulate visitation. We reverse and
Facts and Procedural History
Cheek and Ms. Edwards, formerly married, have two minor
children. After their divorce, they agreed to share custody,
but they could not agree on where the children should
primarily reside during the school year-with Mr. Cheek in the
District or with Ms. Edwards in Gaithersburg, Maryland. After
a three-day trial in August 2017, the trial court awarded the
parties joint legal and physical custody of their children,
and ordered that the children would primarily reside with Ms.
Edwards. In so doing, the court found "that both of
these parents love these kids incredibly much and [that] up
until last January they did a pretty good job of
co-parenting." The court determined the statutory
considerations did not favor one side over the other, with
one exception. The court acknowledged that there was evidence
that Mr. Cheek had acted violently in the home and that his
commission of an intrafamily offense created a rebuttable
presumption that joint custody would not be in the best
interests of the children. See D.C. Code §
16-914(a)(2) (2012 Repl.). In light of its ultimate ruling,
the court appeared to conclude, however, that that
presumption had been rebutted. In its oral ruling, the court
explained "even [Ms. Edwards] is saying joint custody,
not sole custody. She's not saying don't let these
children around Mr. Cheek because he is a violent person.
She's saying we've had problems in the past, but I
know the children love him and he still needs to be involved
in their life." Instead, the court used the intrafamily
offense evidence as a "tiebreaker" for its decision
regarding the children's primary residence.
the court made its oral ruling,  but before it issued its
written Findings of Fact, Conclusions of Law and Permanent
Custody Order on September 14, 2017, Ms. Edwards filed a
motion for civil contempt, arguing that Mr. Cheek had
violated the trial court's directive that the parties not
"harass, assault, threaten, or stalk" each
other. Ms. Edwards alleged that, on September 3,
2017, when she and Mr. Cheek met to exchange the children,
Mr. Cheek struck her in the jaw with his fist; she provided
the court with a copy of the temporary protective order she
had obtained in the General District Court of Montgomery
County, and she informed the court that Mr. Cheek faced
criminal charges for second-degree assault. Ms. Edwards also
asserted that Mr. Cheek had sent her a "deluge of
unprovoked text messages demonstrating increasing hostility
Edwards asked the court to "order the following remedial
• Domestic violence prevention and parenting courses for
• A requirement in the visitation schedule that all
future custody exchanges take place at a third-party location
at a place of Ms. Edwards's choosing;
• In lieu of attorney's fees, $500.00 payable to Ms.
Edwards to be used for psychological counseling services ...