Turker v. Weaver

321 A.3d 689

Uzay TURKER, Appellant,

v.Witney E. WEAVER, Appellee.

No. 23-FM-0050

District of Columbia Court of Appeals.

Submitted April 10, 2024

Decided August 29, 2024

Appeal from the Superior Court of the District of Columbia (2019-DRB-000054), (Hon. Deborah J. Israel, Trial Judge)

Uzay Turker, pro se.

Alan Solomon, Bethesda, MD, for appellee.

Before Howard and Shanker, Associate Judges, and Washington, Senior Judge.

Howard, Associate Judge:

Appellant Uzay Turker challenges the trial court’s physical custody award regarding the minor child, E.W.T., whom he shares with Appellee Witney Weaver. Mr. Turker, appearing pro se, argues that the trial court abused its discretion by dispro- portionately weighing his involvement in intrafamily offenses when reducing his custodial time with E.W.T. On review, we discern no abuse of discretion. The trial court considered the factors set forth in D.C. Code § 16-914(a)(3) and weighed the evidence presented in the best interest of E.W.T. As a result, we affirm the trial court’s final custody order.

I. Background

Mr. Turker and Ms. Weaver are the biological parents of E.W.T. Their relationship began in 2016 while Mr. Turker was still married to his former wife, who is the biological mother of his first child. Shortly after Mr. Turker’s divorce in the summer of 2017, Ms. Weaver moved into Mr. Turker’s residence in the District. The two lived together for the duration of Ms. Weaver’s pregnancy and until E.W.T. was four months old. During this time, Ms. Weaver stayed at home to care for E.W.T. while Mr. Turker worked at a restaurant that he owned and paid for the household’s expenses. At trial, Ms. Weaver testified that after E.W.T. was born, Mr. Turker continued to "party to excess" and often stayed out partying until the early morning hours.

The trial court found that throughout 2018 and 2019, both Mr. Turker and Ms. Weaver engaged in multiple instances of physical violence against one another— characterizing each as "demonstrat[ing] belligerent, harassing, and violent behaviors" toward the other. During trial, the court heard the testimony of witnesses about Mr. Turker’s and Ms. Weaver’s negative temperaments—especially toward the other. On at least one occasion, the trial court found that the violence occurred in front of E.W.T. One of the earliest instances of violence occurred in June 2018, which resulted in Ms. Weaver and E.W.T. moving to Garrett County, Maryland, with Ms. Weaver’s stepfather. During that instance, Mr. Turker prevented Ms. Weaver from leaving their shared residence in the District by physically blocking her exit and withholding her belongings. Ms. Weaver eventually called her mother, Nan Weaver, who facilitated Ms. Weaver and E.W.T.’s safe exit from the residence. Mr. Turker and Ms. Weaver later reconciled but continued their cycle of behavior; Ms. Weaver, ultimately, returned to Garrett County.

In January 2019, Mr. Turker filed a complaint seeking joint physical custody of E.W.T. One month later, the trial court issued a Temporary Custody Order ("TCO") by Consent in which Mr. Turker and Ms. Weaver agreed that Mr. Turker would have custody of E.W.T. from Sunday morning until Tuesday evening, and Ms. Weaver would have custody at all other times. In October 2020, the trial court issued a Temporary Custody and Visitation Order ("TCVO"), which supplemented the TCO, established custody for the winter holidays, and required court permission before either party engaged in international travel with E.W.T.

Unfortunately, the TCO did not ease tensions between Mr. Turker and Ms. Weaver. During the first year of exchanges, Ms. Weaver would spend thirty to forty minutes inspecting the car seat installed in Mr. Turker’s vehicle, which Mr. Turker "found unreasonable." Ms. Weaver justified these inspections by recalling "with great specificity" several instances where Mr. Turker had the car seat installed in the front seat, facing the wrong direction, or without the rear tether. The trial court heard from two non-party witnesses who each testified to instances where they observed the car seat installed improperly in Mr. Turker’s vehicle.¹ The trial court also credited Ms. Weaver’s testimony about "several illegal driving tactics [Mr. Turker] employ[ed]."

While the TCVO touched on only international travel, domestic travel proved to be contentious for Mr. Turker and Ms. Weaver as well. On two occasions in June 2021, Mr. Turker took E.W.T. to his second residence in Florida without notifying Ms. Weaver. After each of these incidents, Ms. Weaver filed a Motion for Contempt of Temporary Custody because these out-of-state visits encroached on her time with E.W.T., pursuant to the TCO.² Ms. Weaver then "withheld [E.W.T.] from [Mr. Turker] from June to November 2021" for fear of Mr. Turker "abscond[ing] with [E.W.T.]." During that period, Mr. Turker filed several Motions for Contempt.

Shortly before these instances of Mr. Turker removing E.W.T. from the District, in May 2021, Mr. Turker appeared at E.W.T.’s school "unannounced and unidentified." The owner of the school refused to answer any questions concerning E.W.T. because Mr. Turker was unknown to her and not listed on E.W.T.’s emergency contact list. Mr. Turker sought to persuade her of his relation to E.W.T. by showing her photos of him with E.W.T. and she called the police when he refused to leave. Mr. Turker responded by moving his vehicle just "outside the boundaries of the campus property" where he "proceeded to interact with the enrolled children and their respective parents, who were entering and exiting the school, asking about [E.W.T.]." Mr. Turker again returned to the entrance of the school and began tapping on the windows, which resulted in a "soft-lock down" of the school. Mr. Turker did not leave until the police arrived and asked him to do so. The trial court found that Mr. Turker "demonstrated absolutely no appreciation" for the seriousness of his actions and the disruption to the school day because in testifying about the incident Mr. Turker "did not impute … any real significance" to the incident.

In addition to conflict surrounding the custody agreement, the trial court found that Mr. Turker’s and Ms. Weaver’s disagreement spanned "most medical decisions concerning [E.W.T.]."³ The topics of disagreement ranged from selecting medical insurance and a doctor for E.W.T. to coordinating schedules such that both parents could attend medical appointments. During one such instance, Mr. Turker and Ms. Weaver agreed to continue with Mr. Turker’s scheduled visitation even though E.W.T. had a fever. When the child returned to her care, Ms. Weaver took E.W.T. to the emergency room where the child was diagnosed with pneumonia. After the diagnosis, Mr. Turker refused to administer the prescribed medication. As a result of the incident, the trial court determined that "[Mr. Turker] failed to take proper medical care of [E.W.T.] … and … neither communicated truthfully about [E.W.T]’s condition nor obtained the necessary medical attention on [E.W.T.’s] behalf."

During the four-day trial, the trial court also heard from several witnesses who spoke positively about the relationship each parent shares with E.W.T. Ms. Ca- narte testified that E.W.T. "looks to [Mr. Turker] for security" and that they share a close relationship with one another. Nan Weaver testified that "[Ms. Weaver] is an active mother" and that she "tries to impart appropriate responsibility to [E.W.T.] as [they] age[ ], such as by allowing [E.W.T.] to dress [themselves] and to feed the cat." The trial court found that Mr. Turker and Ms. Weaver both "harbor a genuine desire to be an active part of [E.W.T.]’s life."

On December 27, 2022, the trial court issued a Permanent Custody and Child Support Order awarding sole legal custody to Ms. Weaver and joint physical custody to Ms. Weaver and Mr. Turker. Under the joint physical custody order, E.W.T. is to primarily reside with Ms. Weaver, and be in the care of Mr. Turker every other weekend beginning on Friday evenings after school until Sunday afternoon. In addition, Mr. Turker was awarded two weeks of uninterrupted time during the summer with E.W.T. The court fixed a location for exchanges of E.W.T. outside of a Metropolitan Police Department station to " ‘lessen the opportunity’ for either [Mr. Turker or Ms. Weaver] to resort to violence."

In its order, the trial court addressed the credibility of Mr. Turker and Ms. Weaver. The trial court explained that Mr. Turker and Ms. Weaver each "displayed an emotional immaturity that ma[de] it difficult for the [trial c]ourt to test their sincerity." Accordingly, the trial court "made certain findings of fact where [Mr. Turker and Ms. Weaver’s] testimony align[ ] and then addressed material differences when the testimony did not align." However, the trial court "in some instances" deferred to Ms. Weaver’s testimony because the court found Mr. Turker "lacking in credibility and candor in certain critical areas."⁴

In fashioning the custody award, the trial court considered the best interest of the child and all relevant factors as outlined in D.C. Code § 16-914. Foremost, the trial court determined that the presumption of joint custody was rebutted in this case because it "found by a preponderance of the evidence that [Mr. Turker and Ms. Weaver] committed intrafamily offenses against each other (specifically in a series of incidents in 2018 and 2019)." The trial court explicitly noted that it "ha[d] insufficient evidence and [could not] identify within any particular incident a single aggressor or attribute sole responsibility to either Party," and therefore was "less able to conduct a ‘separate evaluation’ of each Party’s offenses." The trial court characterized these instances of violence as "inextricably intertwined," but nevertheless did not "simply cancel[] each other out."

In further assessing the relevant factors for a determination of the best interest of the...