Often times the child custody aspect of the intra family matters are fiercely contested with parties yielding to emotions and striving to win at all cost.
The governing principle in awarding child custody is the best interest 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
Sole Legal custody
Joint legal custody
Sole 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 will 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 legal and physical custody considering the countervailing elements as enumerated below.
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:
(A) The wishes of the child as to his or her custodian, where practicable:
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.
(B) The wishes of the child’s parent or parents as to the child’s custody:
Clearly the court will take into consideration and factor in each parents’ commitment and dedication toward the child, evidence of quality time spent with the child, trips and outings and family interactions and involvement can bolster parents’ stated wishes.
(C) The interaction and interrelationship of the child with his or her parent or parents, his or her siblings, and any other person who may emotionally or psychologically affect the child’s best interest:
The emotional sphere of the child vis-a-vis each parent is considered here. Evidence from a therapist or family member and childcare providers attesting to an emotional bond with a 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.
(D) The child’s adjustment to his or her home, school, and 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 extra curriculum activities.
(E) The mental and physical health of all 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.
(F) Evidence of an intra-family offense such as domestic violence, restraining orders, child abuse and others (defined in section 16-1001(5):
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.
Some of the less significant factors still collectively considered by the court are:
(G) The capacity and willingness of the parents to communicate, coordinate and reach consensus decisions regrading the child’s welfare and day to day needs.
(H) The willingness of the parents to share custody; the prior involvement of each parent in the child’s life;
(J) The pertinent facts regarding the child’s social and school life;
(K) The geographic proximity of the parental homes as this relates to the practical considerations of the child’s residential schedule;
(L) Parental employment commitments and time available to spend with the child;
(M) The age and number of children;
(N) The sincerity of each parent’s request;
(O) The parent’s ability to financially support a joint custody arrangement;
DC 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.
CHILD CUSTODY MODIFICATION:
In the District, child custody orders may be modified or reexamined 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 is it 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. Refer to the child support page for more on this topic.
Our experienced DC child custody lawyers are not only experts 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 child custody and support awards and decisions.
Sample DC Child Custody complaint and additional information and sample documents are provided in the Resources section, the DC Bar Pro Bono Family Law Forms:
• 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)