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 the time of the child’s birth or adoption by the child’s parent; (ii) Has taken on full and permanent responsibilities as the child’s parent; and (iii) Has held himself or herself out as the child’s parent with the agreement of the child’s parent or, if there are 2 parents, both parents; or

(i) Has lived with the child in the same household for at least 10 of the 12 months immediately preceding the filing of the complaint or motion for custody; (ii) Has formed a strong emotional bond with the child with the encouragement and intent of the child’s parent that a parent-child relationship form between the child and the third party; (iii) Has taken on full and permanent responsibilities as the child’s parent; and (iv) Has held himself or herself out as the child’s parent with the agreement of the child’s parent, or if there are 2 parents, both parents.

Subsequently, third party custodian may file or intervene in the pending custody action under the following criteria:

(A) The parent who is or has been the primary caretaker of the child within the past 3 years consents to the complaint or motion for custody by the third party;

(B) The third party has: (i) Lived in the same household as the child for at least 4 of the 6 months immediately preceding the filing of the complaint or motion for custody, or, if the child is under the age of 6 months, for at least half of the child’s life; and (ii) Primarily assumed the duties and obligations for which a parent is legally responsible, including providing the child with food, clothing, shelter, education, financial support, and other care to meet the child’s needs; or

(C) The third party is living with the child and some exceptional circumstance exists such that relief under this chapter is necessary to prevent harm to the child; provided, that the complaint or motion shall specify in detail why the relief is necessary to prevent harm to the child.

The Statute also bestows upon the biological parents a rebuttable presumption of fitness or more specifically: that it is in the best interests of the children to reside with their parent. That custody with biological parent is presumed to be in the best interests of the children. In order for the court to grant custody to third party the court has to determine by clear and convincing evidence that the presumption in favor of custody with parent has been rebutted and that custody with the third party is in the best interests of the child.

The parental presumption is rebutted if the court finds by clear and convincing evidence existence of one or more of the below listed elements: (1) That the parents have abandoned the child or are unwilling or unable to care for the child; (2) That custody with a parent is or would be detrimental to the physical or emotional well-being of the child; or (3) That exceptional circumstances, detailed in writing by the court, support rebuttal of the presumption favoring parental custody.

The Court of Appeals in W.H. v. D.W. (No. 11-FM-1334), with the opinion issued on October 13, 2013, considered action by the third party custodians biological brother and grandmother D.W. and J.W. against the biological father W.H. The Court determined that D.W. did qualify as a third party custodian, had rebutted the parental presumption by clear and convincing evidence, and if fact it was in the best interests of the children to reside with him rather than the natural father strictly considering the elements listed above.

The interesting aspect of the this ruling has to do with the grandmother J.W. and her standing to litigate in the matter and be joined in award of custody with D.W. The Court ironically found that J.W. did not qualify as either a third party custodian or a de facto parent strictly under the provisions listed and analyzed above. However, the court still found her inclusion permissible under two broadly stated provisions in the third party custody statutes with a plenary/inclusive language:

§ 16-831.04(a)(5) which essentially states that the court may issue any custody order as long as the court determines is in the best interests of the child.  And § 16-831.13 which states “[n]othing in this chapter shall be construed to limit the ability of any person to seek custody of a child under any other statutory, common law, or equitable cause of action or to preempt any authority of the court to hear and adjudicate custody claims under the court’s common law or equitable jurisdiction.”

The Law Offices of David Stein specializes in complex and demanding child custody/support matters.