Jl.B. v. L.B.

285 A.3d 1258

JL.B., Appellant,

v.L.B. and M.S., Appellees.

No. 21-FM-134

District of Columbia Court of Appeals.

Argued September 15, 2022

Decided December 15, 2022

Massiel Leiva, with whom Donald P. Salzman, Annamaria Kimball, and Alexis Alvarez, were on the brief, Washington, for appellant Jl.B.

No brief was filed for appellees L.B. and M.S.

Melissa Colangelo, with whom Krystal Montgomery was on the brief, as guardian ad litem representing the interests of Ja.B.

Sasha Drobnick, Elizabeth Vogel, Joshua L. Richardson, and Caitlin M. Kasmar, Washington, filed a brief for the Domestic Violence Legal Empowerment and Appeals Project as amicus curiae in support of appellant Jl.B.

Before McLeese and Deahl, Associate Judges, and Ruiz, Senior Judge.

Deahl, Associate Judge:

This custody dispute concerns Ja.B., who is now fourteen years old. The conflict is largely between Ja.B.’s mother, Jl.B., and his grandmother, L.B., though Ja.B.’s father, M.S., is also involved. Jl.B. was twenty years old when she had Ja.B. in 2008, and she enlisted her mother L.B. to help raise him. M.S. was largely out of the equation at that time. While the custody arrangement was somewhat variable in the years that followed, by 2016, Jl.B. and L.B. had reached an agreement under which they shared roughly equal physical custody of Ja.B.: (1) L.B. had Ja.B. on school days; (2) Jl.B. had Ja.B. on weekends and vacations, including the long summer vacation; and (3) M.S. had a weekly visit with Ja.B. That was their arrangement for several years, and Ja.B. seemed to thrive under it.

Jl.B. sought to modify that custody arrangement in 2019 and moved for sole legal and physical custody of her son. After several days of trial, the court denied that request and initially issued an order preserving the status quo, stressing Ja.B.’s success under the existing arrangement and his need for continuity. But shortly after the court issued that order, Jl.B.’s husband, J.H., physically attacked Jl.B. in Ja.B.’s presence. Ja.B.’s guardian ad litem asked the court to reopen the evidence and reconsider its order in light of that incident and its effects on Ja.B. The court granted that request and, after hearing an additional day of testimony, amended its order substantially, stripping Jl.B. of all custody save for two supervised visits with Ja.B. per month. The court also amended its order to grant joint legal custody to M.S. and L.B.

Jl.B. now appeals that decision. She argues that the trial court (1) erred in concluding that the statutory presumption favoring parental custody had been rebutted, see D.C. Code § 16-831.05(a) ; (2) violated the statutory prohibition against using the fact that a parent has been the victim of domestic violence in determining the parental presumption had been rebutted, see id. § 16-831.07(c); and (3) abused its discretion in applying the "best interests of the child" factors when fashioning the current custody arrangement, see id. § 16-831.08(a). We disagree with Jl.B. on the first point and conclude that any error as to the second point was harmless where the statutory presumption was rebutted prior to and independent of the domestic abuse incident and its aftermath. We agree with Jl.B. on her third point, however, and we therefore vacate the trial court's custody order and remand for further proceedings.

I.

Ja.B. was born to Jl.B. and M.S. in 2008. For the first eight years or so of his life, Ja.B. and his mother both lived at L.B.’s house in Northwest D.C., though there were stretches where L.B. would kick Jl.B. out for being "disrespectful and belligerent." While the trio lived together, L.B. and Jl.B. would both care for Ja.B., though the majority of parenting responsibilities seemed to fall on L.B. during the early years, as Jl.B. finished her schooling. In 2011, L.B. and Jl.B. agreed to share joint legal and physical custody of Ja.B., and L.B. sought a court order to that effect. The court—by all accounts, erroneously—awarded L.B. sole legal and physical custody of Ja.B. Jl.B. has since filed a series of motions to modify that erroneous custody order, to no avail. Her earliest request to modify the custody order, made mere months after the erroneous order issued, asked the court to give her joint custody of Ja.B. That request was denied because Jl.B. apparently failed to properly serve her motion on the requisite parties.

Jl.B. again tried to modify the custody order in 2016, by which point she had married J.H. and moved out of L.B.’s house, though Ja.B. continued to live with L.B. This time Jl.B. sought sole legal and physical custody of Ja.B. After mediation, Jl.B. and L.B. agreed that Ja.B. would live with L.B. during the school year and with Jl.B. on weekends and school breaks (a roughly even split of the calendar year). M.S. did not take part in the mediation, but Jl.B. and L.B. agreed that he would continue his established practice of visiting Ja.B. about once a week.

Ja.B. was happy with this 2016 arrangement and thrived under it. He attended school near L.B.’s house in Northwest D.C., where he got good grades and was on his school's track and field and cross country teams. He had many friends, and some of his teachers described Ja.B. as their "best student." L.B. tended to Ja.B.’s education: she helped him with his homework, communicated with his teachers, and attended parent-teacher conferences. Ja.B. liked spending time with both his parents and his grandmother. He also enjoyed spending time with his maternal and paternal half-sisters. All in all, Ja.B. testified that he "like[d] the way that things are" under the arrangement.

But not everybody was content with it. Jl.B. still wanted sole custody of her son, and in 2019, she again sought a modification of the controlling custody order and requested sole legal and physical custody of Ja.B. Animating her desire for sole custody is the fact that Jl.B. has fraught relationships with both L.B. and M.S. and doubts their abilities as caregivers; M.S. was notably convicted of assaulting Jl.B. while she was pregnant with Ja.B. L.B. and M.S., who are on better terms with one another, both opposed the requested modification. The case went to trial, and the court appointed a guardian ad litem to represent Ja.B.’s interests.

The guardian ad litem called Jl.B., L.B., and M.S. as witnesses, and questioned each of them about their suitability as parents. In response to those questions, Jl.B. acknowledged that she has been diagnosed with bipolar disorder, but denied that she was currently affected by the disorder and noted that she had not been on any medication since 2017. Rather, she described herself as having mood swings that resulted from certain stressors. L.B. testified that she herself had lupus and depression, but believed that she could effectively manage those conditions and that neither affected her day-to-day functioning. She also explained that she suffered a heart attack in 2018 and took medication and regularly saw her cardiologist. M.S. testified that he had no relevant mental or physical health issues. All three testified that they had positive relationships with Ja.B., which Ja.B. confirmed in his own testimony.

A court-appointed psychologist, Dr. Seth King, also testified about the parties’ relationships with Ja.B. and their abilities to co-parent. Dr. King described Ja.B.’s relationships with Jl.B., L.B., and M.S. in generally positive terms and expressed "[n]o major concerns" about any of their abilities to care for Ja.B. Dr. King noted that the conflict between Jl.B., on the one hand, and L.B. and M.S., on the other, limited "their ability to work collaboratively together." He further opined that if Jl.B. were given sole legal and physical custody of Ja.B., it was his impression that Jl.B. would cut off all contact between L.B. and Ja.B., which he thought would be detrimental to Ja.B.’s well-being. Dr. King also expressed concerns about Jl.B.’s diagnosed but untreated bipolar disorder, which he noted could lead to periods where her "emotional functioning" and "emotional stability" were compromised.

After the hearing, the court issued a detailed order in May 2020 that essentially maintained the 2016 custody arrangement. It ordered that while L.B. would retain sole legal custody of Ja.B., L.B. and Jl.B. would share joint physical custody—with Ja.B. spending a roughly equal number of days with each of them—and M.S. would retain his weekly visitation. In reaching that result, the court acknowledged the statutory presumption favoring custody with parents, D.C. Code § 16-831.05(a), a presumption that operated against granting L.B. any amount of custody. But it found the presumption had been overcome in two statutorily enumerated ways: (1) that excluding L.B. from the custody arrangement "would be detrimental to the physical or emotional well-being of" Ja.B., D.C. Code § 16-831.07(a)(2) ; and (2) "[t]hat exceptional circumstances ... support[ed] rebuttal of the [parental] presumption," id. § 16-831.07(a)(3). Having found the parental presumption rebutted, the court concluded that it was in Ja.B.’s best interests to maintain the status quo, keeping him in his current home with L.B. during the school year, but still allowing him to spend substantial time with both his parents. The court's reasoning was largely based on Ja.B.’s considerable success and happiness under the existing arrangement.

About two weeks after the court issued that order maintaining the status quo, Jl.B. was physically beaten in her own home by her husband, J.H., while Ja.B. was staying with her. Following this incident, the guardian ad litem filed a motion to reopen trial and amend the judgment in light of new evidence. See Super. Ct. Dom. Rel. R. 59(a)(2). The court held another evidentiary hearing, in which L.B., Jl.B., and M.S. testified about the battery and its aftermath. Ja.B. did not testify or otherwise indicate that his preference for maintaining the status quo had changed. The credited testimony was as...