The child custody cases are probably the most significant aspect of the intra-family matters because they involve granting legal rights over care, control and visitation of the children.
The governing principle in awarding child custody is the best interests of the child.
In the District, there is a legal presumption of joint legal and physical custody among parties.
The court depending on the facts, evidence, and circumstances of the case may award each of the following or combination thereof:
- Sole physical custody
- Joint physical custody
- Sole legal custody
- Joint legal custody
Sole physical custody grants physical care and control to one parent while most likely awarding visitation rights to the other parent.
Sole legal custody is more significant on the other hand as it bestows sole legal rights over the child, that is one parent would make decisions regarding health care, education, religion, travel, etc.
It is very likely that the parent who is awarded sole legal custody would have physical custody as well.
In most cases however where domestic violence, intra-family offenses and other extraordinary issues are non existent — the court generally follows the presumption of equal/joint legal and physical custody considering the countervailing elements as enumerated below.
CHILD CUSTODY LEGAL ELEMENTS
The court in assessing and evaluating each case and the comparative position of the parties, considers collectively the following statutory enumerated elements to award custody:
1) The child’s wishes and choice of custodian:
Even if the child is under the legal age of providing legal consent, the court will take into consideration the child’s wishes and considers statements and evidence of child’s preference.
This could include evidence provided by the daycare, teachers from school, a therapist or at times when appropriate the court will speak with the child directly.
2) The parental preference as to the child’s custody:
The court will take into consideration and factor in parent’s commitment and dedication toward the child, evidence of quality time spent with the child, trips and outings and family interactions and involvement all can support parent’s stated wishes.
3) The emotional/psychological factors contributing to the child’s best interests including but not limited to sibling interactions and interrelationship:
The emotional sphere of the child vis-a-vis each parent is considered here.
Evidence from a therapist or a family member and childcare providers attesting to an emotional bond with each parent can be a significant tipping evidence.
Also sibling placement and child’s interactions with those siblings, biologically related or not, can provide further evidence of child’s emotional connection to a particular parent.
4) The child’s attachments and adjustments to the home environment, school, and her community:
The proximity of a parent to child’s choice school or teacher or a program would be considered by the court as well as parent’s involvement with the child’s education, community and extracurricular activities.
5) The physical and mental health and well being of all the individuals involved:
Parents with mental and psychological issues effecting care and welfare of the child will be at deficit for placement considerations — as the court will always strive to place the child in an emotionally healthy environment.
This is also a significant consideration for award of legal custody. Courts would be reluctant to award legal custody to a parent with proven mental health issues or even at times emotional instability.
6) Evidence of intra-family offenses such as: domestic violence, restraining orders, and child abuse and neglect:
Domestic violence and conflicts in the child’s environment is a significant factor.
Evidence of child abuse or neglect, restraining orders, stay away orders, and any form of assault either proven or alleged – all would be closely considered and factored by the court in award of both physical and legal custody.
Child custody and visitation orders once issued, can establish and create routine and finality to the child’s as well as parent’s day to day life and allow for an amicable joint parenting.
Some of the less significant factors still collectively considered by the court are:
- The parental willingness and ability to coordinate and to communicate on issue pertaining to the child;
- The child’s emotional bond to each parent;
- Evidence relating to and significant as to the child’s social and school life;
- The proximity and locality of each parent vis-a-vis child school and other schedules and practical considerations;
- Parental availability and work schedule; ability to spend meaningful time with the child;
- The age and number of the children;
- The devotion and commitment of each parent to the child.
DC CHILD CUSTODY MODIFICATION
In the District, child custody orders may be modified or re-examined by showing of “substantial and material change of circumstances.”
Generally geographical changes, recommendations by the child’s therapist or at times financial or even schooling issues can trigger modification hearings.
The court may also engage services of a therapist or appoint a guardian at litem (GAL) to better assess issues like child’s bond with the parents, child’s wishes, or the level of interactions or interrelationship among parties, if any.
The legal burden of proof is only preponderance of evidence. Thus it is critical to present compelling and direct evidence on the legal elements to ensure a favorable legal outcome.
Moreover, the award of physical custody to one parent would shift significantly the child support obligation toward the non-custodial parent.
THIRD PARTY CUSTODY
Third party custody is generally applicable in circumstances when the biological parents are unable to properly care for their child and either a relative or a third party must step in to assume day to day care.
The legal presumption always favors parental custody. That is, it is in the children’s best interests to be raised by their parents rather than by a third party. The parental presumption is not rebutted unless the court can articulate by clear and convincing evidence that the parents are unfit.
A third party may file a complain for custody of a child if:
- The custodial parent for the past three years consents to the third party complaint; or that
- The third party has lived in the same household as the child for the past 4 months out of 6 prior to the filing of the third party custody complaint, and the third party has been the primary provider of food, shelter, clothing, and care of the child or;
- That the third party resides with the child under some exceptional circumstances in which relief under the third party custody statute is required to prevent harm to the child.
The presumption favoring parental custody has been rebutted if the court finds by clear and convincing evidence that:
- The parent has abandoned the child, or
- That he or she is unwilling to care for the child or
- That custody with the parent would be detrimental to physical or emotional health of the child, or
- Some other exceptional articulable circumstances exist in support of third party custody.
ORIGINAL CHILD CUSTODY JURISDICTION
The District of Columbia has jurisdiction and is the proper venue to bring a child custody action if:
- DC is the home state (child residing) of the child on the date of the filing of the action,
- Or was the home state of the child within past 6 months before the commencement of the proceeding, and
- The child is no longer resides in DC but a parent or person acting as a parent continues to live in the District.
Alternatively DC may also retain jurisdiction, if the home state of the child declines to exercise jurisdiction and the child or the child’s parent has a significant connection to the District, and there is also substantial evidence present in the District pertaining to the child’s:
- training or
- personal relationships
Generally if there are any pending cases in the District such as Civil Protection Order, or Child Abuse and Neglect involving the child or the parents, then the significant connection criteria is satisfied.
RELATED DC CHILD CUSTODY ARTICLES
- TRI-PARENTING; LEGAL DEVELOPMENTS
- CHILD SUPPORT MEASURED BY CHILD CUSTODY
- WASHINGTON DC CHILD CUSTODY LITIGATION: WHAT IS THE BEST INTEREST CRITERIA
- THIRD PARTY CUSTODY
- DE FACTO PARENT
- DOES INTERSTATE COMPACT ON THE PLACEMENT OF CHILDREN (ICPC) APPLY TO A NON-CUSTODIAL OUT OF STATE BIOLOGICAL PARENT?
DC CHILD CUSTODY RESOURCES
- Complaint for Custody and/or Visitation
- Consent Answer (Complaint for Custody and/or Access to Children)
- Contested Answer (Complaint for Custody and/or Visitation and Counterclaim)
- Reply to Counterclaim (Custody and/or Access to Children)
- Motion to Modify Custody and/or Visitation
- Motion for Temporary Custody and/or Access to Children
- Sample Parenting Plan
- Motion for Use in a Domestic Relations Case
- Opposition to Motion (Domestic Relations Case)
Additional Child Custody Forms and Resources
- DC CHILD CUSTODY STATUTE
- CHILD CUSTODY TUTORIAL VIDEO
- CHILD CUSTODY VIDEO/MODIFICATION
- CLC CUSTODY RESOURCES
Refer to our Child Support page for more related information.
Our experienced Washington DC child custody lawyer is not only an expert in the controlling statutes and the current case law, but also have years of litigation practice in front the DC Superior Court Family Court Judges who will directly rule on the award of child custody.
Contact our DC Family lawyer/DC Child Custody Lawyer to schedule a thorough case evaluation and analysis.