Disappointing Custody

Decisions All Favor

Fathers
by Anne L. Perry, Esq.*

Editors Note: Regular contributor and legal scholar Anne Perry

provides a summary o f a decision coming out o f the District of
Columbia Court o f Appeals. The fact pattern and the legal lines
o f reasoning applied by both the trial court and the appeals court
in this case, as noted by Ms. Perry, are likely to be distressingly
familiar to those who assist victims with child custody litigation.
The decisions are indeed disappointing, especially given the vast
body o f knowledge now in place to help courts, including appeals
courts, available to help legal actors make better decisions in these
difficult cases.

DISTRICT OF COLUMBIA: FATHERS ALIENATION FROM

DAUGHTER OUTWEIGHS HISTORY OF VIOLENCE AS
COURT UPHOLDS JOINT CUSTODY ORDER
The parties, Elena L. Jordan and David A. Jordan, are the parents of two mi
nor daughters. Mr. Jordan asked for a divorce after 11 years of marriage and
agreed to a consent civil protection order without admissions, which required
him to stay away from Ms. Jordan. The parties engaged in a highly conten
tious custody trial which spanned nine days. According to the trial court, the
parties marriage was fraught with conflict and marked by several violent
episodes. The court found that during two of these episodes, Mr. Jordan com
mitted intrafamily offenses as defined by the Districts domestic violence
statute. While there was evidence of additional instances where Mr. Jordan
lost his temper, the trial court held that these incidents did not fall within
the definition of domestic violence.
The relationship of each parent to the daughters was characterized as
"normal and equal during the marriage. However, after Mr. Jordan moved
*Anne L. Perry, a contributing editor for Domestic Violence Report and Sexual Assault Report,
works for Lakeview Health Services in Ithaca, NY.
An earlier version of this article appeared in Domestic Violence Report, June/'July 2012.
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out, his relationship with his daughters deteriorated and became strained.
During an overnight visit, the older daughter, E.J., called her mother to report
that her father had shaken her. Child Protective Services investigated and
concluded that E.J.s allegations were unfounded and that E.J. appeared to
be coached or otherwise influenced.
The trial court found that E.J. developed an unhealthy enmeshment
with her mother, her views of her father became distorted, and she be
came alienated from him. The younger daughter, A.J., who was seven years
younger than E.J., was loving with her father when she was alone with him,
but copied E.J.s behavior when E.J. was present.
The court also considered the detailed report of a custody evaluation per
formed by a licensed clinical psychologist who interviewed the parties, the
children, and numerous other
individuals involved with the
The expert also opined that the type
family. In his report, the psy
of domestic violence perpetrated by
chologist stressed that the chil
Mr. Jordan was situational; that the
dren needed to have positive
incidents were the type of interparental
connections with both parents
and that it was in E.J.s best
conflict that sometimes occurs amidst
interest to redevelop a good
the intense emotion accompanying
relationship with her father.
family dissolution; and that the prior
The expert also opined that
actions were not a predictor of future
the type of domestic violence
violence by Mr. Jordan.
perpetrated by Mr. Jordan was
situational; that the incidents
were the type of interparental conflict that sometimes occurs amidst the in
tense emotion accompanying family dissolution; and that the prior actions
were not a predictor of future violence by Mr. Jordan.
The psychologist concluded that both parents were fit and recommended
joint legal and physical custody of the children. He also recommended a parent
ing coordinator to help minimize conflict and promote the relationships between
Mr. Jordan and his daughters. The trial court gave great weight to the expert re
port, noting that the characterizations in the report were objective and fair.
The court acknowledged in its findings that Mr. Jordan had committed
intrafamily offenses against Ms. Jordan that gave rise to a rebuttable pre
sumption against awarding custody to Mr. Jordan under the Districts cus
tody statute.
Nonetheless, the court determined that the presumption was rebutted by
evidence that E.J. was alienated from Mr. Jordan and that A.J. was in danger
of becoming alienated, which posed a risk of serious emotional damage for
both children.
The court then considered 17 statutory factors relevant to determining the
best interests of the children and awarded joint legal and physical custody to
Ms. Jordan and Mr. Jordan. Because the parties were unable to reach decisions

D isappointing C ustody D ecisions A ll F avor F athers

27

together amicably, the trial court appointed a parenting coordinator to medi

ate and resolve any disputes concerning the children.

Mother Appeals and Loses

Ms. Jordan appealed the order, arguing that the court erred in awarding joint
custody without specifically applying the presumption against custody where
there is a finding of domestic violence. She also claimed that the court erred
in appointing a parenting coordinator over her objection.
The District of Columbia Court of Appeals concluded that both of Ms.
Jordan's claims of error lacked merit. With respect to the presumption against
custody, Ms. Jordan contended that the court failed to make adequate findings
of domestic violence, failed to make particular findings regarding the safety
and emotional well-being of the
children, and erred in finding
With respect to the presumption
that the presumption against
joint custody was rebutted by against custody, Ms. Jordan contended
evidence that E.J. was alien that the court failed to make adequate
findings of domestic violence, failed
ated from Mr. Jordan.
The court found that the to make particular findings regarding the
trial court fully considered the safety and emotional well-being of
evidence of domestic violence,
the children, and erred in finding that
and made implicit findings that
the presumption against joint custody
complied] with the require
was rebutted by evidence that E.J. was
ments of the statute. The trial
alienated from Mr. Jordan.
courts factual finding that the
additional incidents of domes
tic violence did not constitute intrafamily offenses was not clearly erroneous,
and in any case, the presumption was already triggered by the courts finding
that two such offenses were committed.
While the trial court did not make express findings that Mr. Jordan did
not pose a danger to Ms. Jordan and the children, the record did reflect the
determination that Mr. Jordan was a fit parent and that joint custody was
in the best interests of the children. These findings obviously reflected
the trial courts judgment that Mr. Jordan was not a danger and that the
emotional damage to the children due to parental alienation would be worse
than the difficulties they would face in attempting to salvage the relation
ship with their father.
Finally, the court disagreed with Ms. Jordans contention that the trial
court relied solely on the threat of parental alienation to rebut the presump
tion against custody. Ms. Jordan argued that because Mr. Jordans conduct
was the cause of the alienation, the trial court erred when it used Mr. Jordans
abusive behavior as a reason to give him greater access to the children. Rath
er, the court concluded that the trial court considered the danger of parental
alienation as one of many factors to rebut the presumption. The record in

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this case established] that the trial court assessed numerous factors, both in
determining whether the presumption against joint custody was rebutted and
in evaluating the best interests of E J . and A.J.

Parenting Coordinator
With respect to the order appointing a parenting coordinator, Ms. Jordan ar
gued that the trial court did not have the authority to make such an appoint
ment over a partys objection, that allowing a parenting coordinator to make
decisions regarding the children violated her right to procedural due process,
and that the court abused its discretion in ordering her to pay half of the costs
of the coordinator.
As a matter of first impression, the court concluded that the trial court was
authorized both to appoint a parenting coordinator under the exceptional cir
cumstances presented by this case, and to delegate decision-making authority
to the parenting coordinator over day-to-day issues that do not implicate the
courts exclusive responsibility to adjudicate the parties rights to custody and
visitation. The exceptional circumstances in the instant case were the highconflict nature of the parties relationship, coupled with the determination
that joint custody was in the best interests of the children.
The court found that the trial court properly limited the authority of the
parenting coordinator to resolving day-to-day conflicts between the parties
while preserving the courts responsibility to decide the core issues of cus
tody and visitation. Nor did the use of a parenting coordinator violate Ms.
Jordans due process interest in the care and custody of her children, as the
procedure established promote[d] the best interests of the children by pro
viding a mechanism to resolve parental conflicts in a timely fashion.
Next, the court found no abuse of discretion in the trial courts ruling that
Ms. Jordan must pay for half of the costs of the parenting coordinator or have
her portion of the costs deducted from child-support payments. The court rea
soned that both parents were in strong and roughly equal financial positions
and splitting the costs of the parenting coordinator was fair and reasonable.
The choice to have these costs deducted from the child-support was not an
attachment as Ms. Jordan argued, but simply the courts means of ensuring
that Ms. Jordan took responsibility for her share of the expenses. Finally, the
court rejected Ms. Jordans contention that the appointment of the parent
ing coordinator was error because it was against public policy to require her
to engage in any process requiring joint decision-making and cooperation
with Mr. Jordan who was a batterer and an abusive parent. The trial court
appropriately considered Mr. Jordans commission of two intra-family of
fenses when it awarded joint custody and appointed a parenting coordinator.
Accordingly, although joint parenting may be inappropriate in some cases
where there is a history of domestic violence, this is not plainly such a case.
The judgment of the trial court was affirmed. Jordan v. Jordan, Nos. 09-FM1152, 09-FM-1337, and 10-FM-375 (D.C. Ct. App. 2011).

D isappointing C ustody D ecisions A ll F avor F athers

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N E W H A M P S H IR E : M O T H E R S A T T E M P T S TO P R O T E C T
C H IL D R E N FR O M S E X U A L A B U S E BY FATHER MAY
R E SU LT IN LO SS O F C U S T O D Y A S C O U R T O V E R T U R N S
CUSTODY ORDER

The parties, James J. Miller and Janet S. Todd, are the parents of two minor
daughters. Following their separation, Miller and Todd battled in court for
custody of the children, primarily sharing joint legal custody, with physical
custody with Todd.
Allegations of Sexual Abuse

Todd, along with her parents, made several allegations of sexual abuse by
Miller against the older daughter. Visitation between Miller and the children
was suspended following the first report of abuse, but the Division for Chil
dren, Youth, and Families (DCYF) concluded that the charges were unfound
ed. The older daughter made a second report of sexual abuse by Miller to the
children s therapist, and Miller was initially found responsible for the abuse.
He appealed and the determination was rescinded, after which Todd received
a letter from the DCYF stating concern that the child was coached with the
information that she was disclosing and warning that this type of coaching, if
proven, is equally as abusive to a child as if the abuse had actually occurred.
Therapeutic Reunification

The parties agreed to be evaluated by a psychologist to investigate the abuse al

legations and make recommendations on parenting and custody. The psychol
ogist found it unlikely that Miller had sexually abused his daughter, but it was
not possible to say with absolute certainty that he did not. The psychologist
found it most likely that Todd was distorting information and had caused the
child to believe that she had been sexually abused by her father. Based largely
on this report, the court recommended therapeutic reunification between
the children and their father in order to normalize their relationship. When
the parties failed to adhere to the courts schedule for reunification, the court
concluded that Todds insistence that Miller had sexually abused the children
was the single biggest obstacle to restoring Millers relationship with them.
Following visitation, both children disclosed inappropriate touching by their
father to their guardian ad litem and Millers visitation was suspended, but
DCYF closed the matter as unfounded. A month later, the older daughter re
ported threats by her father against her mother. At the final hearing on custody,
the court reviewed five years of evidence and concluded that the girls best
interests require that they continue living primarily with their mother in New
Hampshire. Miller appealed, arguing that the trial court erred in awarding
Todd parenting responsibility when she had engaged in a sustained campaign
to alienate the children from [him], and to interfere with his parenting rights,
by making multiple accusations of sexual abuse.

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Best Interests of the Child on Appeal

The Supreme Court of New Hampshire reviewed the best interests of the
child criteria, including the ability of each parent to foster a positive rela
tionship with the other parent. The court noted that conduct by one parent
that tends to alienate the childs affections from the other is so inimical to the
childs welfare as to be grounds for the denial custody to, or a change of cus
tody from, the parent guilty of such conduct. Moreover, the court reasoned
that where a residential parent is attempting to poison the relationship be
tween the ex-spouse and the child, this is a change of circumstances that war
rants a modification of the prior custody decree. Unsubstantiated allegations
of abuse are the worst kind of poisoning of the relationship. The court found
numerous instances in the record of Todds unfounded belief that Miller
had sexually abused his children, and held that these false accusations of
abuse significantly interfered
with Millers visitation and de
The court noted that conduct by one
prived him of any relationship
parent that tends to alienate the childs
with his children for years.
affections from the other is so inimical
The court also found no evi
to the childs welfare as to be grounds
dence on the record that Todds
for the denial custody to, or a change
conduct of pursuing unfound
o f custody from, the parent guilty of
ed allegations of sexual abuse
against Miller would cease.
such conduct.
The court also noted that the
trial court awarded custody to Todd primarily because the children had spent
most of their lives with her, but that Miller did not have the opportunity to
establish a home life with them because of Todds allegations of abuse. This
raises the question whether Todd has benefitted from her misbehavior. The
court thus vacated the award of parental rights and responsibilities and re
manded for reconsideration of light of this opinion. In re Miller and Todd,
No. 2009-806 (N.H. 2011).

FLORIDA: MODIFICATION OF CHILD CUSTODY IN

CONTEMPT PROCEEDING REVERSED
Napoleon and Latrailya Hunter are the divorced parents of minor children.
Mr. Hunter was awarded primary residential custody of the children, and
visitation with the mother which did not occur without difficulty. To en
force her right to visitation, Ms. Hunter sought and received a contempt order
which awarded her substantial make-up visitation. When Mr. Hunter again
failed to deliver the children as ordered, Ms. Hunter filed another motion
for contempt and for an emergency pickup order for the children. Following
what appears to have been a non-evidentiary hearing, the trial court ordered
that the children be picked up and delivered to Ms. Hunter and that she have
primary residential custody of the minor children. The trial court made no
written findings whether the transfer of primary residential custody of the
children was in their best interests.

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The Appeal
Mr. Hunter appealed and the Court of Appeal of Florida initially recognized
that a transfer of custody is not an appropriate sanction for contempt. The
purpose of a contempt order is to obtain compliance with a prior court order.
In the absence of a finding that a change of custody is in the childrens best
interest, such a change may inadvertently punish the children for the uncoop
erative conduct of the parent.
Second, due process is violated without proper notice that the opposing
party is seeking a change in the primary residential custody of the parties
children. Ms. Jordan did not seek a change in primary residential custody in
either of her contempt motions, so the trial court violated Mr. Jordans rights
to due process, mandating reversal.
Third, the trial court failed to comply with the Florida statute identify
ing the relief available to a party when the other parent refuses to comply
with a visitation plan. One such remedy is modification of the parent
ing plan if modification is in the best interests of the child. However,
Ms. Jordan did not request such relief, nor did the trial court make the ap
propriate findings.
The order was reversed and remanded with directions to enter an order
returning the primary residential custody of the children to Mr. Jordan, but al
lowing Ms. Jordan to seek any relief to which she may be entitled. Hunter
v. Hunter, No. 2D 10-4810 (Fla. Ct. App. 2011).

NEW YORK: MODIFICATION OF VISITATION WITHOUT

EVIDENTIARY HEARING REVERSED
Marianella Santiago and Christian Halbal have battled over custody and visita
tion of their minor children for many years. Santiago filed a petition to modify
an earlier order granting unsupervised visitation to Halbal. The petition alleged
that since the entry of the earlier order, Halbal had become increasingly verbal
ly, emotionally and physically abusive towards the children. Prior to the hearing
date, the court conducted an in camera, informal interview with the children
without the parents present (Lincoln hearing). On the scheduled date for the
hearing, the court did not conduct the hearing, but issued an order directing that
the fathers visitation be supervised. Halbal appealed, and the New York Appel
late Division noted that the family court had recognized the need for a hearing
but then inexplicably issued its order without conducting the hearing.

Changing Order Must Be Based on Change of Circumstances

A custody or visitation order may be modified only upon a showing that there
has been a subsequent change of circumstances and that modification is in the
children s best interests. The family court should not have modified the prior
order of visitation without holding an evidentiary hearing, despite the fact
that the judge had regularly presided over this matter and was familiar with
the parties and the children. Nevertheless, in light of the factual disputes

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and allegations of parental alienation, the court should not have summarily
granted relief without conducting a full hearing on whether any changes to
visitation were in the childrens best interests. The order modifying visita
tion was reversed. Santiago v. Halbal, Slip Op. 07571 (N.Y. Ct. App. 2011).

FLORIDA: FATHERS SINGLE SPANK WAS

REASONABLE PARENTAL DISCIPLINE AND DID NOT
CONSTITUTE DOMESTIC VIOLENCE
K.C. is the 14-year-old daughter of divorced parents. While visiting with her fa
ther, K.C. was being disrespectful and defiant (K.C. described her attitude as
sarcastic), when her father took her arm (K.C. said he yanked her out of chair)
and spanked her once on the buttocks with his hand. K.C. did not notice any
marks on her buttocks, although she did have a red mark on her arm. K.C. called
her older sister, who then called their mother, who then called the police.

Mother Seeks Injunction on Behalf of Daughter

The following day, her mother filed a petition for injunction for protection
against domestic violence on behalf of K.C. After a hearing, the trial court en
tered a final judgment of injunction, ruling that the statute provided protection
from domestic violence without any exception, including parental discipline.

Father Appeals
The father appealed, and the Court of Appeal of Florida first noted that the
statute does grant a spouse standing to seek an injunction against domestic
violence against a former spouse on behalf of the parties children. The court
also found that the common law recognized a parents right to discipline his
or her child in a reasonable manner. Case law has expressly recognized a
typical spanking as reasonable or non-excessive corporal punishment.
Although the domestic violence statute did not expressly incorporate the
common law principle, neither did it exclude it as a defense. Thus, the court
reasoned that parental discipline was available as a defense against a petition
for injunction against domestic violence. The court concluded in the instant
case that under established Florida law this single spank constituted reason
able and non-excessive parental discipline and, as a matter of law, was not
domestic violence. Accordingly, the court reversed the final judgment. G.C.
v. R.S., No. 1D11-2710 (Fla. Ct. App. 2011).

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