The Court of Appeals in T.S. v. M.C.S., provided a unique interplay between the Washington DC Divorce, Custody and the Neglect Statutes.

The mother T.S., appealed an order entered in a divorce proceeding permanently removing her two children from her custody and awarding permanent custody to the children’s maternal grandmother.

The mother essentially claimed that the trial judge exceeded her authority under the District’s divorce statute by overlooking the biological parents and placing the children’s custody in a third-party grandmother.

Procedurally, the father had filed for separation and eventually divorce while also alleging failure to protect by the mother and unfitness.  Mother had countered with physical sexual abuse of the children and thus a neglect petition was initiated against the father and eventually substantiated by the Corporation Counsel.

The trial judge without a neglect petition being initiated against the mother, had ruled physical custody not appropriate with the mother as well stating and ruling that: the mother had abdicated her parental duties to the maternal grandmother that “the children … are thriving under the current temporary custody of their grandmother;” and that the grandmother “has provided for the emotional and physical needs for both children over the majority of their lives.”

The Court of Appeals in short, held that the trial judge did not have the legal authority to place the children with a third party under the divorce statute holding that the right of a parent to raise her child is a fundamental liberty interest protected by the Constitution, and also that there is a presumption that children’s best interests are best served by being placed with their parent and not a third party.

Moreover, third party placement can substantially interfere with a natural parent’s right to develop a relationship with their children and denial of custody to a natural parent affects the parent-child relationship gravely.

Furthermore, the natural parents must be afforded all of the procedural protections provided by law. Thus here, the Court held that: the trial judge attempted to act conscientiously in what she believed to be the best interests of the two children, she exceeded her authority under the divorce statutes and deprived the mother of custody without affording her the procedural safeguards to which the mother was entitled under the child neglect laws.

For the trial court to consider a third-party custody placement in a divorce filing among parents – there must be first a third-party custody filing which the court may consolidate with the divorce proceeding in determining the overall best interest of the children and placement thereof.

Moreover, here there was significant procedurally deficiencies in the trial court’s finding the mother also neglectful. The procedural safeguards of the neglect statute are detailed and substantial, before a child can be removed from a parent’s custody:

  • The Corporation Counsel must file a verified neglect petition;
  • That sets forth plainly and concisely the facts which are alleged to confer jurisdiction over the child upon the court.
  • The petition must be served on the parent, guardian, or other custodian of the child named in the petition.
  • The court is required to conduct a fact-finding hearing on the petition, and
  • Must make and file written findings in all cases as to the truth of the allegations as well as to whether the child is neglected,
  • The court must then direct that a predisposition study and report … be made by the Director of Social Services or a qualified agency … concerning the child, his family, his environment, and other matters relevant to the … disposition of the case.

The biological mother was never afforded these procedural safeguards and thus the case was remanded for the trial court to reconsider custody and placement consistent with the ruling.

Refer to our Washington DC Divorce Lawyer, Washington DC Child Custody as well our Washington DC Neglect & Abuse pages for more detailed information on these issues.

Categories: Family Law.