The DC caselaw as well as the Statutory language both are consistent on equality among parents when it comes to granting physical and legal custody and the presumption is well rooted.
Courts have generally held that: it is a “Constitutional principle, rooted in the Due Process Clause, that the right to presumptive custody of a fit, unwed, noncustodial father who has grasped the opportunity to be involved in his child’s life can be overridden only by a showing by clear and convincing evidence that it is in the best interest of the child to be placed with someone else.
The Statute provides: unless the court determines that it is not in the best interest of the child, the court may issue an order that provides for frequent and continuing contact between each parent and the minor child or children and for the sharing of responsibilities of child-rearing and encouraging the love, affection, and contact between the minor child or children and the parents regardless of marital status.
There are however several caveats to the presumption and in reality it rarely applies equally to cases particularly if there is evidence of domestic violence.
That is, there remains a rebuttable presumption that joint custody is in the best interest of the child or children, except in instances where a judicial officer has found by a preponderance of the evidence that an intrafamily offense (intimate partner, intrafamily offense or violence) has occurred.
These terms are specifically defined as:
“Intimate partner violence” means an act punishable as a criminal offense that is committed or threatened to be committed by an offender upon a person:
- To whom the offender is or was married;
- With whom the offender is or was in a domestic partnership; or
- With whom the offender is or was in a romantic, dating, or sexual relationship.
“Intrafamily offense” means interpersonal, intimate partner, or intrafamily violence.
“Intrafamily violence” means an act punishable as a criminal offense that is committed or threatened to be committed by an offender upon a person to whom the offender is related by blood, adoption, legal custody, marriage, or domestic partnership, or with whom the offender has a child in common.
Thus if the court determines that there is any evidence of domestic violence as defined above, the presumption of joint legal and physical custody does not apply necessarily unless the evidence is rebutted by the defending party.
The degree of violence, who the violence was directed to (child or the parent), the length of time passed and evidence of effective and persistent parenting since violence — all can be used as rebuttable evidence to return the presumption of co-parenting to equal.
The decision by the courts to grant physical and legal custody and how to split time spent with the child will be also significantly induced by the other legal elements enumerated in the Statute as listed under the link below.
Needless to say, if the case involves any degree of domestic violence, it is imperative to prepare and introduce significant rebuttal evidence of parental fitness and isolate the domestic violence claims and demonstrate that is in the best interest of the child to spend substantial or equal time with each parent.
For more information of this topic, refer to our DC Child Custody page.