The Court of Appeals in Wilkins v. Ferguson reversed the trial court’s order granting the biological father unsupervised visits and further expounded on modification of visitation orders when there is evidence of intrafamily offenses.

After filing for absolute divorce, and seeking custody award from the court, the trial court granted joint legal custody with primary physical custody with the mother, Ms. Wilkins.  The trial court also found compelling evidence that husband had committed, and wife had suffered substantial physical, verbal and psychological abuse with the pattern of abuse existed throughout the marriage.

The father-child visitation was later suspended due to allegation of sexual abuse, and the father filed for modification of the order of suspension alleging substantial and material change of circumstances, which the trial court granted subject of this appeal.

On appeal, the trial court’s order allowing the father to have unsupervised visits with the child, despite the finding of intrafamily offense against his wife and the child was reversed as no health professionals had recommending unsupervised visits.

The Court of Appeals elaborated that although normally substantial change of circumstances warrants modifying a suspended visitation order —  given the history of domestic violence and intrafamily offense against both the mother and the child, further analysis was required mainly — the best interests of the child evaluation by the court.

Thus, a party seeking modification of a custody or visitation award must prove by a preponderance of evidence that:

• There has been a substantial and material change in circumstances.
• The modification is in the best interests of the child, and
• The intrafamily offense triggers a shift of  burden to the perpetrator of the offense to prove that the visitation or custody modification would not endanger the child or impair the child’s emotional development.

In short, before the court can modify a suspended visitation order, there must be further findings that:

• The visitation order would not endanger or significantly impair the child’s emotional development.
• There must be an expert testimony on record that unsupervised visits would be appropriate given the allegations, and
• The Court must further go through the elements defining the best interests of the child to evaluate if the scale is tipped in favor of granting modification of parent-child visits.

Clearly, the Court with this case raised the bar as to when modification of visitation order would be appropriate facing evidence of intrafamily violence particularly involving the child.  Thus, if the child is the subject of the intra family violence, in addition to determining by preponderance of evidence that substantial and material change of circumstances exists to modify a standing visitation order, the court must go through the full analysis and evaluation of the best interests of the child as well before un-suspending a parent-child visitation order.

Refer to our Washington DC Divorce, and Child Custody Lawyer pages for more details on these subjects.