In the recent opinion issued by the Court of Appeals in IN RE D.M.; T.M., (March 13, 2014), the Court once again articulated that when a biological parent is unable to care for his or her child, her choice of a fit custodian must be given a weighty articulated consideration by the trial court. T.M., the biological mother of D.M., appealed successfully her termination of parental rights by the trial court. She argued on appeal that the lower court erred by “failing to give weighty consideration to the third-party custodial arrangement” she set forth as a placement option and in
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Archives for Family Law
De Facto Parent/Third Party Custody Actions: Legal Principles and Recent Relevant Court of Appeals Case:
In the District, the child custody statute extends rights upon third party and de factor parent custodians. That is, if an individual can establish by clear and convincing evidence that he/she is either a de facto parent or a third party custodian of a child – then the Statute allows for filing and litigating the custody action against the parent seeking order for grant of physical/legal custody to the third party custodian or to the de factor parent. Specifically, de facto parent is defined as an individual who has either: (i) Lived with the child in the same household at
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RECENT COURT OF APPEALS RULING
In another recent opinion issued by the Court of Appeals, the Court applied the same legal principles emphasized and enumerated in IN RE TA. L. (No. 11-FS-01217, 2013 WL 4779715), also recently issued on August 22, 2013 – but with entirely different outcome. The Court in In RE TA. L., clearly re-established that when the biological parents have designated a preferred custodian, the trial court can only overcome their choice by finding with clear and convincing evidence that their choice is contrary to the best interests of the child. There the Court ruled that the parents’ choice of custodian was
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RECENT COURT OF APPEALS NEGLECT REVERSAL
In yet another recent case, it appears that the Court of Appeals has gradually shifted the standard of review in favor of the biological parent and the parental rights and preferences. In the previously blogged and reviewed cases, the competing adoptions with a parental preference and a fit father’s custody filing — were both considered and analyzed – and in each of these recent cases, the Court had sided with the parental preference arguably raising the bar to overcome parental preferences and here to find neglect against a parent. In IN RE K.M., decided on September 12, 2013, the Court
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RECENT DC COURT OF APPEALS CASE DEFINING “WEIGHTY CONSIDERATION”
The recent Court of Appeals case on a competing adoption petition litigation issued on August 22, 2013 (citation below) defined with more specificity the meaning of “weighty consideration” given to parents’ choice of a fit custodian. Here the parents whom have been adjudicated as having neglected their children consented to E.A., the great aunt’s adoption petition competing against W.s the foster parents. The attachment study that was conducted did not factor or involved the children’s attachment to E.A. In short, it was one sided attachment evaluation. The study clearly established though a secure attachment to W.s – the foster parents.
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DC COURT OF APPEALS REVERSES FINDING OF NEGLECT
The Court of Appeals on July 25, 2013 in IN RE ANG.P. & AND.P.; (Nos. 11-FS-1584 & 11-FS-1585), reversed the lower court finding of neglect against a biological mother who was charged with neglecting her children by leaving them without proper parenting, care and control. The legal standard specifically provides: a child is neglected if he or she “is without proper parental care or control, subsistence, education as required by law, or other care necessary for his or her physical, mental or emotional health, and the deprivation is not due to the lack of financial means of his or her
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THIRD PARTY CUSTODY: LEGAL STANDARD – RECENT DC COURT OF APPEALS CASE
There is rebuttable presumption that custody with a parent is in the best interests of the child unless proven otherwise by clear and convincing evidence. In another word, there is a parental presumption of fitness that can only be overcome by clear and convincing evidence to the contrary. This is also a constitutionally rooted and protected principle. In the District, a third party may file for custody of a minor child – however, the legal standard used – similar to adoption and termination of parental rights – is as stated: by clear and convincing evidence. Thus with the third party
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DC TEMPORARY PROTECTION ORDER/CIVIL PROTECTION ORDER TPO/CPO
LEGAL ELEMENTS Generally a TPO petition/affidavit is filed under oath attesting that the safety and welfare of the petitioner/affiant and/or a household member is imminently endangered by the respondent’s conduct and thus an immediate relief in form of a court order is needed to protect the petitioner and other listed members of the family. The initial hearing is generally ex parte and almost always the petition is granted as long as sufficient facts are alleged. Within 14 days of the issuance of the TPO order, the court will set the matter for a CPO hearing and the respondent would be
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PETITIONER’S FTINESS FINDING IN THE ADOPTION PROCEEDINGS: RELEVANT CASES AND THE STATUTORY PROVISIONS
This blog addresses legal principles applicable to the court’s fitness finding in the adoption cases when the health or fitness of the adoptive petitioner is at issue. There are statutory provisions that address both fitness as well as health of the petitioners, among other parties, and relevant case law, which extend possible waiver of the doctor-patient privilege when in the best interest of the child or justice to the petitioners as well as the natural parents. There is the Termination of parental rights: D.C. Code §16-2353 (b)(2), the court is charged with in considering what is in the best interest
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CHILD’S TESTIMONY, THE LEGAL PRINCIPLE:
Often times in the neglect and abuse, termination of parental rights, and adoption litigation — the child’s testimony can tip the scale one way or another. Under the adoption statute, the child’s position, if the child is fourteen or older, shall be considered by the court. Under the TPR statute, §16-2353(b)(2)&(4); mental and emotional needs of the child as well as the child’s opinion as to his/her best interest are both codified. In child custody cases, the child’s opinion as to his/her physical custodian is one of the statutory elements, §16-914(3)(B). Regardless, in family cases, the litigants face resistance from
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