The Court of Appeals in W.D. v. C.S.M, determined whether the trial court had the authority to grant permanent custody of a minor child, who was under the court’s jurisdiction in a neglect case, to third parties in a separate proceeding filed under the domestic relations laws.

Factually, the child was removed from the mother’s care under a neglect petition filed, and before the biological father was given an opportunity toward placement with his child, third party custody was filed and court in the domestic relations case awarded custody to the third party.

The issue on appeal was whether the trial court had exceeded its authority in awarding permanent custody of the child to unrelated third parties in the domestic relations case all while the neglect case was open and being litigated.

The evidence at trial had established that the biological father after genetic testing confirming paternity had in fact taken all the necessary steps toward becoming a legal custodian of the child.   Specifically, the biological father subsequent to being notified of his paternity had expressed desire and willingness to have visitation, made efforts towards obtaining physical custody of his son, and all other evidence suggested the father’s genuine interest in maintaining a parental relationship with his child.  In another word, the father had grasped his opportunity interest to parent the child.

Despite this, the domestic relation’s Judge had found that the best interests of the child required granting the complaint for permanent custody to the third party even though the biological father’s fitness to parent was not addressed by the court.  Moreover, the trial court’s order in the domestic relations case awarding permanent custody to third party was entered prior to the first scheduled review hearing under the neglect disposition order effectively bypassing the extensive protections for the parent and child that are governed under the neglect proceedings.

The third party custody filing had in effect subverted the procedural safeguards to include reasonable efforts at reunification of the child with his father.

Moreover, the award of permanent custody in a domestic relations case does not carry with it the safeguards of periodic reviews, family reunification efforts, reports and evaluation of parental cooperation, and careful and comprehensive permanency planning for the child’s future.

Thus, the Court of Appeals concluded that the proper disposition of the legal custody required allowing for the full neglect statutory protection afforded to the biological parents before any third party custody filing can be considered.  Case was remanded to the trial court.

Incidentally, DC Third Party Custody Statute provides in pertinent part:

 § 16–831.02. Action for custody of child by a third party.

(a)(1) A third party may file a complaint for custody of a child or a motion to intervene in any existing action involving custody of the child under any of the following circumstances:

(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.

Refer to our Washington DC Family Lawyer page for more details and content on divorce and child custody.