The DC Court of Appeals in IN RE D.S., K.M., B.S., R.S., T.S. & P.S.; J.M., issued on September 20, 2012, reiterated the legal principles governing placement of children in the custody of their biological parents in a split neglect case.  Here the evidence established that the mother physically neglected the children and removal from her home was warranted, however, the court did not sufficiently consider the biological father and placement of the children with him rather than the shelter care — basis for the Court of Appeals reversal of the case.  The father was willing and able, had sufficient housing and was caring for the children on the weekends.

The Court of Appeals cemented through this ruling the father’s statutory constitutional and case-law supported presumption of custody unless proven by clean and convincing evidence to be unfit and not in the best interest of the children.   The presumption is rudimentary: that it is generally both preferable and advantageous to leave a child in his or her own home.  That the biological parents are most suited to care for their children and most likely care for their children better than anyone else.

The Court also touched up the best interest of the child criteria and shed another definition on this nebulous and rather malleable legal term: that “the best interest of the child requires the judge, recognizing human frailty and man’s limitations with respect to forecasting the future course of human events, to make an informed and rational judgment, free of bias and favor, as to the least detrimental of the available alternatives.” Rather expanding the formula to encompass a noncustodial father, who might not be perfect, and yet provided effective care and provided a parental placement as an alternative to shelter care.

The Court of Appeals also enlisted the US Supreme Court cases declaring a fundamental right to raise your child.  To establish a home and to bring up your children.  To control and direct the care, custody, education and management of your children.  A non custodial father who “ demonstrated a full commitment to the responsibilities of parenthood by coming forward to participate in the rearing of his child . . . acquires substantial protection under the Due Process Clause.”  A noncustodial father has a “constitutionally protected” right/opportunity to develop a relationship with his child.  All powerful language reinforcing and reiterating a parent’s Constitutional right to raise his or her child without unreasonable and unwarranted and unjustified interference by the State.

The real issue with this case is the harm done to the children as by the time this opinion was issued the court had already concluded the matter via guardianship with a relative.  It would have been supremely beneficial for the father to have filed at the beginning of the neglect case custody papers with the court and have the matter consolidated.  This would have forced the lower court to consider elements enumerated in the Custody Statute requiring finding of unfitness for the father and thus allowing an opportunity for a quicker appeal and also a record that addressed more precisely the central issue in the case: whether the father was unfit to care for his children.

The Law Offices of David Stein specializes in complex family law matters and cases: familylawdc.com.

Full Opinion: http://www.dccourts.gov/internet/documents/10-FS-1556.pdf

Categories: Family Law.