November 29, 2020

Volume X, Number 334


Child Custody Transfers-When Does the Statutory Parental Presumption Apply?

This blog post is devoted to a recent District of Columbia Court of Appeals case that may affect advocacy clients in certain child custody cases in the District of Columbia.

The District of Columbia Court of Appeals recently considered “whether the statutory parental presumption that custody with a parent is in a child’s best interest applies beyond the initial custody transfer decision, to the modification of a third-party custody order.”  S.M. v. R.M., 2014 WL 2608527 at *1 (D.C. June 12, 2014).

The D.C. Parental Presumption statute states:

  • (a) Except when a parent consents to the relief sought by the third party, there is a rebuttable presumption in all proceedings under this chapter that custody with the parent is in the child’s best interests.

  • (b) If the court grants custody of the child to a third party over parental objection, the court order shall include written findings of fact supporting the rebuttal of the parental presumption.

D.C. Code § 16-831.05.  This statute codifies a parent’s Constitutional and presumptive right to care for his or her child.  See In re D.S., 88 A.3d 678, 686 (D.C. 2014); see also Meyer v. Nebraska, 262 U.S. 390, 399, 43 S.Ct. 625 (1923) (recognizing the constitutional protections afforded to parents to “establish a home and bring up children”).

D.C. law is clear that when a fit parent exercises his or her parental preference, a court can deem that preference rebutted only by clear and convincing evidence that the best interest of the child would be better served if the child were placed elsewhere.  See In re D.S., 88 A.3d at 688-89.  However, how and when the parental presumption may be revoked or waived is a complex issue.  For example, in In re D.S., the D.C. Court of Appeals reversed the trial court’s placement of a father’s six children into the custody of the Child and Family Services Agency, finding that the trial court “did not base its decision on any finding that father failed to grasp his opportunity interest, that he was unfit, or that there was clear and convincing evidence that it was in children’s best interest to be placed with someone else.”  Id. at 692.  The court further held that the trial court must properly recognize the parental presumption before revoking the parent’s right.  Id. 

The recent District of Columbia Court of Appeals case, S.M. v. R.M., 2014 WL 2608527, takes another step in clarifying how and when the parental presumption may be revoked or waived.  Reversing the Superior Court’s judgment awarding custody of the child to a third-party, the court stated, “that a parent’s irrevocable consent to the transfer of custody of her child to a non-parent . . . generally waives his or her parental presumption, such that the presumption will not apply in subsequent modification proceedings.”  S.M. v. R.M., 2014 WL 2608527 at *2.  However, the court held that in order for the waiver to apply, the party’s irrevocable consent to transfer of custody to a third party must be given with “full knowledge and understanding of what she is consenting to and the consequences of that consent.”  Id.  In this case the mother did not “knowingly and intelligently consent” to an irrevocable transfer of custody of her child and thus, she retained the parental presumption.  Id.  The court looked to the trial court transcript which indicated that the mother did not permanently intend to give up custody of her children to her sister while she went to rehab; rather, “it is apparent that she thought that she was consenting to a temporary arrangement and that she intended to file a modification motion as soon as she completed treatment, within a year.”  Id at *9.

While it remains correct that “[c]onsent knowledgeably and intelligently given will permanently waive a parent’s statutory parental presumption,” in the unusual facts presented in S.M., the court reasoned that because D.C. Code § 16–831.11 (which governs the modification of custody orders) makes no mention of parental presumption and the “Parental Presumption” statute states that there is no parental presumption “when a parent consents to the relief sought by the third party,” the parental presumption does not apply at the modification stage.  Id at *10.  The only statutory concern under these circumstances is the best interest of the child.” Id. at *8.  The court further reasoned that the only exception to this rule is when the parent did not knowingly and intelligently consent to a permanent transfer of custody.  See id. at *10.

The S.M. case reinforces the importance of ensuring that your client in family matters understands the importance of giving or withholding consent to custody transfers.  For example:

Representing the mother or father:  If you are representing the mother or father in a custody dispute, it is important to understand their short-term and long-term goals.  If you have a client that wants to consent to temporary custody to a relative or other third party, ensure that the order is temporary, not permanent.  If the order is permanent, the parent loses the parental presumption in any subsequent modification proceeding.  If you are representing a client that is seeking to regain custody of his/her child and has previously consented to granting custody to a third party, you should investigate whether that consent was given knowingly and intelligently.  If the consent was not given knowingly and intelligently, the parent may move to revoke the permanent custody order, making it a temporary and, thus, revocable order.  Lastly, even if the parent has knowingly and intelligently given consent, the standard is still the “best interest of the child.”

Representing a third party:  If you are representing a third party whose objective is to gain temporary or permanent custody of the child, there are different considerations.  It is important for this client to understand that the parents have the benefit of the parental presumption unless they knowingly consent to a waiver of that presumption or the court rebuts that presumption by clear and convincing evidence that the best interest of the child would be better served if the child were placed elsewhere.  Therefore, if temporary custody is awarded to the third-party client, the parent may at any time move to regain custody of that child and will have the added benefit of the parental presumption.

Representing the child as a Guardian ad litem:  A Guardian ad litem should be aware and knowledgeable about each party’s intentions  ̶  both short term and long term, so they can look out for the child’s best interest.

© 2020 Gilbert LLPNational Law Review, Volume IV, Number 203



About this Author

We are formidable and aggressive litigators, but we realize that litigation is a tool, not an end in itself. We have litigated and tried countless insurance coverage cases around the country, in both judicial forums and arbitrations.  As lawyers pursuing insurance recovery, it is important to remember we are plaintiffs.  Like you, we have no interest in long-drawn-out wars of attrition.  Our lean litigation teams focus on identifying key litigation pressure points and imposing maximum litigation risk and settlement pressure on insurers as early as possible.