The Court of Appeals in Cheek v. Edwards decided on September 5, 2019, reversed and remanded a change of custody order in the midst of a civil contempt hearing.

After holding a custody hearing, the trial court had decided and ordered shared physical and legal custody among parents even after considering the allegation of domestic violence.  But before issuance of a final order, the mother-Edwards filed a civil contempt motion alleging that the father had violated the order against not assault, stalking and harassment in being arrested for domestic violence and assault against her.

The trial court while addressing the civil contempt motion hearing determined that the father-Cheek had in fact assaulted the mother in violation of the court’s standing order and while the mother had not specifically requested change of custody and without any prior notice to the father – reversed an earlier order and granted sole physical and legal custody to the mother and punitively -– the Court of Appeals held such cannot be done.

The Court also expanded that the Fifth Amendment of the United States Constitution provides that “[n]o person shall be . . . deprived of life, liberty or property, without due process of law.

The procedural due process guarantee requires that certain procedural protections be afforded before individuals can be deprived of their protected interests such as physical and legal custody of their children.

When protected interests are implicated, due process requires adequate notice and an opportunity to be heard appropriate to the nature of the case.  The Supreme Court has long recognized the fundamental right of parents to raise their children as a protected interest.

In short, the Court held that Mr. Cheek’s due process rights were violated because he was given neither adequate notice nor an opportunity to be heard before the court reconsidered the Permanent Custody Order that had given Mr. Cheek and Ms. Edwards joint legal and physical custody of their children, modifying it to give Ms. Edwards sole legal and physical custody, and in that:

1. Edwards had never sought a change in custody as a remedy or a sanction for Mr. Cheek’s conduct.She had only sought that all future custody exchanges take place at a third-party location at a place of Ms. Edwards’s choosing.
2. The court knew about the alleged assault before it issued its written Permanent Custody Order and had not invoke its statutory authority to reopen the question of custody;
3. Although the court’s order allowed for return to court for a hearing in an event of domestic violence, Ms. Edwards had not filed for or requested for a written motion for a change in custody.
4. The trial court had directed parties to appear only for testimony and argument in the civil contempt motion and there was no notice about a change in custody.
5. Change of custody was not deemed to be a remedy or reply for civil contempt as the standard for change of custody is: substantial and material change in circumstances not A remedy and reply for civil contempt.
6. After the court sua sponte raised the possibility of modifying the custody order, Ms. Edwards indicated that this had not occurred to her, both because she didn’t “want to be too radical” and because she had the impression that the permanent custody order “was pretty set in stone.”
7. Counsel for Ms. Edwards only moved to modify legal custody at the very end of the hearing on the contempt motion, after Ms. Edwards and Mr. Cheek had testified.

Thus, the court should have given Mr. Cheek advance written notice that it was sua sponte considering modifying custody and the father should have been given an opportunity to file a written opposition and to argue that there had not been a substantial and material change in circumstances.

Mr. Cheek should have been also given the opportunity to either:

•  Argue that, if custody of his children was at stake, the hearing should be delayed until after the resolution of his Maryland case or;
•  That at the very least possibly invoke his Fifth Amendment right not to incriminate himself or to testify about his version of his interaction with Ms. Edwards on the date of the alleged assault, a charge for which he was actually eventually acquitted.

Refer to our DC Child Custody page for more detailed information on this subject.