Bazemore v. Davis
394 A.2d 1377
D.C.
1978
Check Treatment

*1 However, where and there is permits time should be emergency, probationer

no such extension and

given proposed notice hearing

afforded a with the assistance of should he so

counsel desire.

Accordingly, conviction appellant’s

Affirmed. BAZEMORE, Appellant,

Lawrence DAVIS, Appellee.

Sharon

No. 12093. of Appeals.

District Columbia Court Mendes, C., Washington, D. Fortunato J. Before Dec. 1977. Argued the Division appellant. for En Argued July Banc 1978. C., Washington, D. Bromberg, Richard S. Decided Dec. Angelo Coolidge H. with whom Glenn C., McCants, Washington, D. were on the N.

brief, appellee. C., Washington, ap- Karr,

John D. W. court, curiae for pointed amicus by this appellant. C., ap- D. Washington, Mayer,

Charles H. court, curiae pointed amicus by this appellee. NEWMAN,* Judge, Chief

Before GALLAGHER,* KELLY, KERN, NEBEK HARRIS, ER, YEAGLEY, MACK* FERREN, Judges. Associate

MACK, Judge: Associate precipi- of this case have Circumstances of the issue tated en banc consideration whether, disputes in ‍​‌‌​‌‌‌​‌‌​​​​​‌​‌​​‌​​‌‌‌‌​​​​​​‌‌​​​‌‌‌​‌‌​​​‌‍child parents, there is a valid natural of a child of tion that interest in the years is served mother. original division.)

* (Denotes members *2 school, April 18,1975, attending and Ms. Davis’ moth- dispute arose on when was August appellee appellant Tonya. Davis Law- er took care of Ms. Sharon sued custody regain custody voluntarily relinquished rence Davis of Bazemore to of their Bazemorе, child, Tonya. Tonya appellant minor to Lawrence the The case was heard on father, living in appellee’s pendente motion lite child’s who also was his custody As was by Judge Washington 10,1976. parents’ on home. Mr. Bazemore both February working, going to and his mother Judge As result of school hearing, that Wash- Tonya. took care of ington determined that the safety health the and of January At 1977—(cid:127) the time the trial — child are better presently served at father, living with her Law- Tonya still [appellant] home than at home Bazemore, parents, rence of his in the home [appellee]; pater- by her being and was still cared mother, grandmother. Sharon Tonya’s environment for nal the child Davis, living parents. with her [appellant’s] [ap- better in than in was also still home school, had, in time; attending was still but pellee’s] home this She addition, arrangements part- made to work permanent Tonya custody of acknowledged time. Ms. Davis that if she can to only party awarded eithеr after regained Tonya, child would Branch, Intra-Family and Neglect So- be cared for more her maternal once Division, Superior cial Services Court grandmother. Columbia, investigates District home of [appellee] [appellant] both and The trial court ruled from the bench in makes recommendation available to mother, giving the favor of the child’s fol- court; .... lowing explanation: 10, 1976, Now, know, of this Judge you as Accordingly, May Wash- both cases nature, ington prefers the mother —the awarding temporary issued an order Bazemore, as the custodian Lawrence natural mother appellant to the natural moth- pending only child and denies investigation by the Intra-Fami- er it can be of the child when ly Neglect Branch of the Social Serv- shown and reasonable demonstrated Superior' ices Division of the Court. On convincing evidence that such and clear August Intra-Family Ne- parent. is unfit as a That natural mother glect Branch filed a memorandum recom- say, mother is either such natural mending permanent unwilling discharge or unable to those child be awarded to the Lawrence normally responsibilities duties and re- However, of the inter- Bazemore. because adequate- quired properly in order to vening Washington, Judge illness of provide for the ly in a reasonable manner Judge held Janu- before Hamilton on defendant made although child. And 12, 1977, at of which ary the conclusion allegation response answer in his Judge Hamilton awarded petition custody by parent, mother, Sharon Davis. is this last deci- to me the evidence has appear does has sion which was and which appealed, established, convincingly clearly and original now been reviewed both law, must the natural do under en We reverse division and the court banc. say either unfit —that and remand. perform those unwilling unable necessary for the wel- reasonably duties I. was born on October The record reveals 18, 1972, out of wed- child, Tonya, fare of thе child. [*] sis [*] [*] [*] [*] what, such July inquiry is under lock. From the date of her birth until The next circumstances, her would be the best inter- Tonya appellee lived with child; but, don’t even reach Davis, in of Ms. Davis’ est of the we Sharon the home because, Davis the law parents. Throughout period point Ms. under Ross, century. Ross v. stated, beginning a natural deprive the law does not rights (1975); mother —that is one of Mona D.C.App., 339 A.2d have, which mothers can motherhood A.2d Monacelli, D.C.App., 296 celli v. their right offspring. the natural to have Rzeszotarski, (1972); Rzeszotarski And, unless it can demonstrated that (1972); Lindau D.C.App., *3 they are unfit to have it unfortu- 864, 865 A.2d Lindau, 286 D.C.App., v. nately, incorporated the civil law has that Dorsett, D.C.App., 281 (1972); Dorsett v. right the natural the mother to have D.C. 290, (1972); Coles 292 A.2d offspring. of her That is the 330, (1964); Bartlett v. 331 App., 204 A.2d the civil law. natural and 190, 192-93, 221 Bartlett, U.S.App.D.C. 94 So, circumstances, gentle- under Stickel, (1954); 508, Stickel F.2d men, anything I don’t know that I can do Wells, 149, (1901); Wells v. App.D.C. 151 18 except give this child to its . . 392, Utley (1897). 395 See also App.D.C. 11 support ruling, In of its prepared the court 1167, 1170 Utley, D.C.Apр., 364 A.2d citing brief written order one case. The re (1976) and cases cited therein. Cf. In reads, order part, in relevant as follows: J.S.R., 860, D.C.App., 374 A.2d 863 Undoubtedly, the mother of a minor child is also the The best interest of the child of strongest has the custody disputes between standard used in claim to custody of her child and ordinari- illegiti and mother of an the natural father ly cannot deprived of that Koppen, D.C. mate Barrett child. See except upon that she is unfit (1959).1 132 Mun.App., 154 A.2d (Matter or unable to care for the child. N.M.S., 924). [D.C.App.] 347 A.2d case, the trial In the instant being showing, Here there no such a fit mother proposition on the relied hereby custody, and ex deprived of can never be ORDERED, ADJUDGED, and DE- issue of the to reach the plicitly refused CREED that Ms. Sharon Davis be this, award- of the child. In best interest ed child, of the minor Tonya La- clearly erred.2 Shurn Davis. appellee, argues however Counsel for error can spite in of the trial court’s we

II. argument affirm that court’s decision. (A) the trial court can be stаted as follows: In their argument briefs and in oral respects the explicitly found that in most court, before parties all to this case situated; (B) is, similarly there parties were agree proper ap to be standard jurisdiction, in this plied custody disputes in the natu between with their better off young children are ral mother and natural father of a child is mother; infer that (C) accordingly, we can the best interest of the child. The best-in Tonya’s has, indeed, in this case it would be concept terest-of-the-child been mother. go standard in this since the interest to with her rights parent against par Although natural as effective until third it did not become not, case, after District of Co- need to delve into the trial in this ties. We do in this Marriage area, appro lumbia and Divorce Act deems for whatever controversial legiti- priate disputes out of wedlock as the born either natural between standard District of parties, mate child of its father and mother. v. Wal and third see Quilloin Act, Marriage 549, 555, cott, and Divorce D.C.Law Columbia L.Ed.2d 434 U.S. 98 54 S.Ct. 1-107, (amending No. 105 D.C.Code (1978); Organization § of Foster 511 Smith v. 16-908). Reform, § Equality 431 U.S. Families for 833-38, (1977), 53 L.Ed.2d S.Ct. N.M.S., upon 2. The trial court relied In re D.C. father, natural mother and natural N.M.S., App., 347 A.2d 924 In re how child is still determina the best interest of the ever, rights deal a natural did not with the tive. father, against but with the mother as a natural 1974); Watts, ex rel. Watts v. State III. (Fam.Ct. N.Y.S.2d Misc.2d assertion, appellee’s As the trial first Spriggs v. 1973); ex rel. Commonwealth respects appel- court did not find that all (1977) Carson, Pa. similarly situated. lant were appellee J.; concurring Nix, judges three (opinion Rather, respect to found that with result). in the cultural, financial, educational, and familial circumstances, substantial dif- there pre- law, was no there Under common parties. spite ference between the To the the mother. sumption favor of similarities, extremely one these least right, a matter of contrary, circum- important difference between the custody of his children. was entitled appellant appellеe stances of clear Roth, Presumption, supra The Tender Years record, namely, that at from the face of the 262,,267 Annot., 424-28; 70 A.L.R.3d child, trial, the time then over 10(b) Parent-Child (1976); 46 C.J. *4 old, with the father living four was 798(b) (1928); 19 C.J. Divorce at 1225-29 previ- living and had been with him in the was also the law (1920). 344-45 This this, ous two and a half As to years. DeKraft, Barney v. 6 District of Columbia. “Bouncing significantly noted: 361, (1 (1862); and Mackey) 367 Mauro D.C. child back forth between mother and and (3 147, Ritchie, Cranch) 3 D.C. Forrest v. grandmoth- maternal paternal and dismissed, 155-56, 2 (1827), appeal Pet. 158 ers, healthy has not will not be her. and 243, (1829).3 7 411 L.Ed. moved, gets Each is she a scar and time she nineteenth centu- Towards the end will who whether if ever knows however, rule that the traditional ry, healed.” began always entitled father was appellee’s argu part As to second which the way to a standard under give ment, in this true that Roth, best interests of the child controlled. is, present, presumption there at Presumption, supra at Tender Years The small are better off with their children 425; Annot., 262, (1976). 70 A.L.R.3d 267 448; Ross, supra at Mona mоther. Ross v. Columbia, this shift can In the District 447; Monacelli, supra celli at Rzeszotar v. Wells, 395, supra at be seen in Wells 439; Rzeszotarski, Lindau v. supra ski v. at 1897, in and Stickel v. which was decided 865; Dorsett, Lindau, supra at Dorsett v. ‍​‌‌​‌‌‌​‌‌​​​​​‌​‌​​‌​​‌‌‌‌​​​​​​‌‌​​​‌‌‌​‌‌​​​‌‍151, Stickel, in supra which was decided 331; 292; Coles, supra at supra at Coles v. 1901. 152, Boone, U.S.App.D.C. 154 Boone v. 80 first, thereafter, in fact Gradually, (1945). 153, 155 presump 150 F.2d favoring law, then in the standard generally tion we now See reexamine. prefer- into a evolved interest of the child Roth, Presumption, Years 15 The Tender Roth, The Tender the mother. ence for cited therein at J.Fam.L. 423 and articles 425; Annot., supra at Presumption, Years Johnson, (1976-77); 423 1 564 n. Johnson 262, In this 267-68 70 A.L.R.3d Strand, 71, (Alaska 1977); P.2d 75 Strand although the best interest 47, jurisdiction, 651, 656, 52 Ill.App.Sd 41 355 N.E.2d per- and still persisted, 214, the child standard Pratt, Ill.App.3d 29 (1976); Pratt sists, developed presumption 216, 244, (1975); re Mar In 330 N.E.2d by generally best served Bowen, 683, (Iowa child’s welfare riage of 219 N.W.2d 3. where the the ward. The father guardian, nature socage; By guardians. the law of Guardianship by and extended by ward person nature; 4, England Guardian was heir of his there are various kinds nature, for nurture . always guardian heir apparent of the chivalry; apparent existed person only . law, phasis supplied).] country, namely, guardianship Forrest v. [G]uardianship Of the four applies it is believed that [*] Ritchie, supra to all the children. ^ kinds nature exists in [*] guardianship at common only [*] one exists 155-56, [*] nature [Mauro [*] country, in this . (em- instance, For assumptions. warranted awarding the mother. first custody to that “. .a courts assumed presumption mention of the in a 1945 home, keeps performs household Boone, mother supra, U.S.App. case. Boone v. duties, more time devote to and will have There, D.C. at at 155. 150 F.2d In re Mar the children and their welfare.” stated, dictum, “[undoubtedly, Bowen, 688. Such an riage supra small presumption that children are bet however, to take into assumption, fails ter off with their mother is entitled to the divorced sin account the realities of weight.” support proposi of this Id. obliga gle assume who must tion, cites one Boone court which and is often not at parents, tions of both inapposite,4 explanation. and offers no working. but out caring home for the Boone, presumption Since favor of Roth, Presumption, Years See The Tender many alluded has been Podell, First, 452-56; Peck and supra at District of cases. Ante Columbia at 1379. Parent?, Marq.L. Custody Which — To any explanation Yet in no case has Note, (1972); Measuring Rev. rationale behind been of- Study of Incom Best Interests — A Child's fered. Considerations, 44 Den.L.J. 139— plete McCormick, evidence, in his treatise Behles, (1967); Rights in Divorce Equal suggests principal there are four rea- Separation, 3 N.M.L.Rev. sons for presumptions. the creation of First, presumptions some are created to cor- *5 parents assumption If the that female are resulting rect an imbalance from party’s a parents upon special the best based some is superior Second, proof. access to the no- workings of judicial insight human into tions, usually implicit rather than ex- nature, Eminent child it fares no better. pressed, of social economic in- policy and that psychiatrists demonstrated what have cline the favor one courts to contention mother, a but someone child needs is not a giving presumption, of a the benefit and “mothering.” Mothering provide who can correspondingly handicap to the disfavored po- “nurturing of the human refers to adversary. Third, presumption may be love, trust, to and every baby tential of to to impasse, created avoid an some reach partnership,” human to bind himself result, it is an though arbitrary even one. Birthright: In De- Fraiberg, Every Child’s Lastly, presumption may based on (1977), Mothering of at xii or fense judicial of proof belief that some fact ren- predictable affec- giving of and consistent ders the inference of the existence of anoth- care, tion, acceptance, protection, approval, er fact so and probable sensible Howell, Can Fa- guidance. See control time-saving to assume the truth of the oth- II, Vol. thers Be Justice No. Parents? adversary disproves er fact until it. person pro- of a ability And the McCormick, of See C. Handbook the Law of necessarily vide corre- “mothering” (2d 1972). Evidence at ed. parent or the spond gender suggested The first rationale McCor- biological relationship between adult and here, presumption mick justify Fraiberg, supra; would not generally, see child. See Watts, equal proof supra, as both have access to also State ex rel. Watts 180-81, child’s best interests. at concerning their Mich.2d at 350 N.Y.S.2d 288-90. second, Nor do or fourth reasons us that the upon third But it is urged the resolution of scrutiny survive as a valid basis for for close tion is a useful tool issue, think that it is. they at for presumption here cases. We do in- had some arbitrary, presumption or on un- For even if would be either based Villapiano, App. the mother the child should be intrusted to case cited is Sardo 4. 121, 122, 255, (1935), is such a course inconsist- where is unless D.C. 81 F.2d Title was said with the child’s welfare. c. ent [Emphasis supplied.] 1929. D.C.Code is both statute and com- established [I]t grandfather and as between the mon law that years applicable only doctrine is unspecifiable determinable cir- validity, five, cumstances, infants, or only to children under purpose it could other or serve Annot., McCormick, supra See ten. to children under save time. See than are likewise at of 287-93. There saving 807. But time accom- A.L.R.3d legal plished price presumption at the of tremendous questions as to whether confusion,5 logical whether factors accompanied by persuasive, controlling or of error. affect its exist unnecessary intolerable risk child as the sex such presumption weight, ence or whether providing place, In the a rule first things equal, other are applicable only when strongest has the claim to the that mother the mother’s and whether obscures, custody of her child and indeed non for the qua is a sine rebuttal unfitness6 tenet, with the basic inconsistent Annot., presumptiоn. 70 A.L. See others, overriding the best interest all Compare generally the R.3d 278-93. re In Mar- See the child should control. re holdings verbal formulations Bowen, supra riage rule at 688. Such a 927; N.M.S., Rzes D.C.App., 347 A.2d ring proprietorship carries a and focuses Rzeszotarski, supra at 439; Coles zotarski v. upon attention mother’s emotional Coles, supra at 331. upon needs rather than those of child. Goldstein, Solnit, See J. A. A. Freud and error Finally, facilitates presumption Beyond the at 12 Best Interests the Child there is little room in an arena in which acts A case error. v. Rzeszo Rzeszotarski parens patriae. obscuring issue in the Besides the basic Boone, supra tarski, Boone v. 439; supra presumption obscure in itself 150 F.2d U.S.App.D.C. curiae Thus, as amicus application. ap- the task enough suggest is not out, pellant has none of our cases pointed one, deciding custody is a difficult what is. define a child of tender Oth- statutes, in a would result er absence of the use of a jurisdictions, more not.7 issue of whether correct often than struggled with the determination *6 aspects subject spawned one of the most unfortunate the As to confusion which clouds generally, presumptions Thayer father attack of wrote: of the —the mother, upon the of the character and conduct figuring propositions that the in numberless necessarily aggravates the ac- presumptions an attack which our cases under name of only rimony parents, be to quite loosely and can . between the are . . too conceived of See, g., expressed, e. Braiman the detriment of child. and to be used or reasoned about 449, Braiman, 584, circumspection. Many N.Y.S.2d without much N.Y.2d (1978). grossly ambiguous, them true in one N.E.2d 1019 are other; any sense false in some are not and all, really only wearing presumptions at but prosaic give example, us taken 7.Let name; express merely a the probability, some natural Sargent from Massachusetts modification others, having and for the sake оf Co., 249, 29 N.E.2d Acc. 307 Mass. line, legal a definite establish a mere rule of (1940). of this case See also the discussion lay very many policy; them . . . Ball, Truth, Probability Theo- in The Moment prima down a law, facie rule of the substantive Proof, ry and Standards of 14 Van.L.Rev. others, general reasoning, and rule (1961). Suppose ac- 822-23 cording we are told that procedure, on or and of founded convenience study, in the to one cars 99% good probability .. sense . Some or . States are We have serious United black. reason, maxims, other mere inferences are misgivings about because the statistic variously pleading, rules of others are others applied sample. arguably let But based on an skewed Among things .. so incon- . assume, study now, had some us that the ambiguity gruous beset with as these and so then, validity. If, information other we opportunity for him to is abundant there stumble and is, guess given we should color a car as to what way pick fall his who instead, suppose we had But black. Thayer, Prelimi- [J. and walk with caution. nary us, eyes made and before and we closed our car Evidence, (1898).] on 351-52 Treatise Truly by probabilities. guess based Morgan, Presumptions, 12 Wash.L.R. See also manner, guess proceeding correctly would we equally It is than not. more often however, opened eyes if we could suggestion true we our that there must be 6. It is the determination. accurate that has make more maternal unfitness awarding custody young A child determining apply norm is ill-suited for adjustment judges at unique being future of a whose which has troubled problem is a In generations. King is vital to the welfare of future least since the time of Solomon. Surely, asking it is not too much to demand legal quarters what has been termed court, making that a a determination as jurisdiction on child leading case in this child, to the best interest of a make the custody, this court said: upon specific determination evidence relat conflicting testimony, Out of a maze of ing to that child alone. As one court has called “a usually including what one court noted, aptly magic place formulas have no perjury,” judge tolerable amount of designed salvage decisions human values. which will inevita- must make a decision 217, 218, ay Le m v. Lemay, 109 N.H. the future life of an bly materially affect making his decision innocent child. In help from judge can obtain little we now di For the reasons stated Each precedents general principles. that, dispute rect in a between a natural attempting to case stands alone. After and father over of their appraise compare personalities child, the trial courts shall decide the deli parents, the of the two capabilities question cate of what is the child’s best to look into the judge must endeavor solely by interests reference to the facts of best future and decide that child’s the particular case without resort interests will be served if committed crutch a presumption in favor of either He father or mother. of the рarty. See the District of Columbia Mar trial premise, as did the starts with the Act, 108(d) riage supra and Divorce § here, judge that the best interests (amending 16- D.C. Code §§ by living in a unit- would be served 911(4) -914). Any prior deci affection, companion- ed home with the sions hereby inconsistent herewith are over ship father and and care of both ruled. eliminated possibility but that has been So, judge. before the case reaches IV. is best for question for him is what conclusion, dispute the law is that in a presented. the child within limitations between the biological parents over custo- decision, he When the makes his dy, the sole is the inter- consideration is the his decision has no assurance that est of the child. In the instant that he is hope right one. He can explicitly refrained from decid- Coles,D.C.App.,204 A.2d right. [Coles ing what in Tonya’s best interests. (1964).] *7 that, Nor do we think on the basis of this into this area of The entered majority has record, we can what say with assurance an opinion in unnecessarily the law In these girl. would be best for the little assumptions containing mistaken circumstances, we must remand the case to to be knocked men” so as “straw erected trial court for a new determination existing on down, change sought has question of custody. custody. is It so ordered. in case difficulty I considerable scores, proce- (a) way got on it here two GALLAGHER, Judge, Associate with (b) majority opinion on the durally, Judges whom Associate NEBEKER and procedural merits. I will first the ^discuss join, dissenting and con- part HARRIS in anomaly, which is a matter of concern. curring in the result: vote, majority took perhaps important By There is no issue more A. a divided I sponte. the trial sua perplexing or more to come before in this case this court en banc appellant custody of chil- because deciding court than on the be of interest find this to standards to in his brief years. dren of tender What had not so much as raised issue, e., the cases involve a i. whether contest issue which became the en banc custody or a validity years of the tender husband and wife over child persons tion. To the extent it even third mentioned contest between a mother and was, this, accepted (e. doing in the brief it if anything, g., parents).3 foster After Consequently, certainly evidentiary not attacked. there will be a discussion generated we are here en banc on an issue general. This is presumptions nature of majority, appellant.1 not This way analysis of the followed an issues, court is here to decide not create years presumption has been so-called them. in order to deter- applied jurisdiction in this reality presumption, mine whether is result, As a is essentially what we have not, used, if commonly term is opinion advisory stating changing an is, and has significance what its actual the law in relation to child cases. been, over cases in these child all, Advisory opinions, after are “bound to years. recent atmosphere.” move in an unreal Frank- furter, Advisory Opinions, A Note dispute be- B. this case thе “Every Harv.L.Rev. of a female tween the unmarried tendency [litigated ab- to deal with child, cases] old at who were about them in ster- stractly, formulate terms of daughter The will time of the child’s birth. legal questions, ile is bound to result During birthday. soon celebrate her sixth sterile conclusions unrelated to actualities.” years, the infant resided with her first two no exception. Id. at 1003. This case is the home of the maternal her mother in grandparents. mother was still attend- The disturbing What is more is we have two ing time. After high school at very pieces legislation jur- recent in this relinquished months, voluntarily the mother relating specifically isdiction to child custo- father custody of child to the natural indy Marriage and Divorce Act.2 (and mother), be- apparently the father’s this court will inevitable soon home cause of friction in the mother’s necessitating have a case a construction of later the parents. her Nine months custody. legislation this new on child One will custody. It complaint regain filed a has thе court chose not to why to wonder get I to the facts apparent when As early await the arrival of such case. realistical- what at the root of lay result, we will later have construe infant ly, grandmother was which legislation atmosphere complicated by an day-to- for the child in going care though course will be this of decision— parent. living, which unmarried day no reason not to unravel the situation at the hardly a vehicle for Consequently, proper time. parental the law on important discussion of majority holding opinion It is the custody. years presumption that the so-called tender report compiled be- Services Social I do in this abolished. Since by that time fore trial the father showed explored majority not find that first employed during college be a student it was any depth what it considered abolish- being summer, cared for begin with the child I will ing, will undertake to do so. *8 rec- report jurisdic- paternal The grandmother. in this the by tracing first the decisiоns perma- the child “remain is made to tender ommended that tion where reference pater- regard to nent years presumption custody without father] [the custody types opinion puts opening of both 1. In its the court this 3. As the discussion demonstrate, way: precipi- disputes mother- fact of will “Circumstances of this case jurisdiction weight en the issue . tated banc consideration of hood carries most in this non-parent deprive a mother when a seeks custody. 2. D.C.Law 1385 vote, nal case grandmother”4 supplied). by a divided that the (emphasis sponte, hearing After trial court said: banc. I the case was reheard en believed under the what, readily susceptible of reversal inquiry The next under such circumstances, Ross, D.C.App., inter- 339 authority would be in best of Ross v. child; but, Lindau, est even reach (1975); we don’t 447 Lindau v. D.C. A.2d because, as I point that under the law and Coles v. (1972); App., 286 A.2d stated, a natu- deprive the law does not remanding for a Coles, supra. Instead of one of the of mothеr- rights ral—that is in accordance custody determination ‍​‌‌​‌‌‌​‌‌​​​​​‌​‌​​‌​​‌‌‌‌​​​​​​‌‌​​​‌‌‌​‌‌​​​‌‍have, the hood which mothers can decisions, majority for the court with those offspring. right natural to have their not raised an en banc issue mulated And, that unless it can be demonstrated continuing validity of the appellant: they are unfit to have it unfortu- years presumption. tender that nately, incorporated the civil has my misgivings were warranted. It seems right the natural of the mother to have banc, majority en After consideration her is the custody offspring. That presumption inflates the tender now natural and the civil law. jurisdiction magnitude unwar- in this to a So, circumstances, gentle- under the case If I comment ranted our law. men, I anything don’t know that can do intriguing parenthetically, is rather except give this child . . to its mother . prominently upon an article relied this majority opinion states that order, January filed its written years pre- previously abandoned the tender to the custody awarded the court being in this sumption now abolished case. the father rights to visitation mother with Presumption Roth, See The Years Tender tri- the earlier Incorporating on weekends. Disputes, Family 15 J. of Custody Child stated: ruling, al Law 458 & n.123.5 child of tender a minor The mother [of strongest claim years] has the juris- principle in It is an established be de ordinarily cannot her child custody disputes that child diction except upon prived of that according resolved to the child’s are or unable she unfit showing that It illuminating best interests.6 will be N.M.S., (Matter the child care for juris- in this turn now to a review of eases 924). A .2d years presumption diction where is mentioned. returned the to her court child Subordinated, if where she has remained. leadoff, Boone, As the Boone v. U.S. not quite disregarded, by the trial (1945),has App.D.C. been F.2d was should have the dominant what been small chil presumption cited for the issue, is, the child’s welfare. Because dren are better off their mothers. Al right theory of mother’s natural though stating judge, to the preoccupied observation weight, entitled I would appropriate inquiry, exclusion of Reversing a trial court dicta. trial. and remand for a new reverse (two father chil award 6), hearing circuit court re appealed ages after dren 9 and The father oral ordered sua examination argument, for decision after manded (1897) (“the appear from of the children would the record interest primarily grandmothers paramount”); been who have Dorsett v. must be considered as Dorsett, (1971) rearing D.C.App., the child. (“paramount ... consideration also, effect, child”); Utley, 5. See to the same “Life with Fa- Utley welfare of D.C. ther,” Family Quarterly, at 332 n.51 (1976) (“it L. Vol. App., 364 A.2d is without any question case now that controlling consideration is the best interest Ross, *9 Coles, supra; 6. v. v. su See Coles Ross child”). of the and welfare Wells, pra App.D.C. quoting at Wells v. 11 parents’ of the concluded that the mother had qualifications the and circum- (e. persons pro- she by g, stances disinterested of how the burden carried officers, workers). As bation social development; the might better assist child’s cited presumption, source the Boone contrast, merely attacked the the father Villapiano, v. App.D.C. Sardo Considering mother’s evidence fitness. F.2d 255 a habeas Sardo involved age, light of the the child’s corpus proceeding brought by the mother to test re- court found that the best interests regain custody child from 9-year-old child remain with the moth- quired that the grandfather. grandfather Between a er. mother, and a the court held that the moth- leading v. In the case of Coles prior er incon- custody, has claim unless years on a tender supra, the mother relied sistent child’s welfare. attempt regain custo- her Leonard, U.S.App.D.C. In Bell v. requires 4-year-old The law dy of a child. pro- (1958), corpus 251 F.2d 890 a habeas years of a child of tender custody custody ceeding, the mother was awarded contended, mother, where she awarded illegitimate daughter rath- 9-year-old her there is a fit custodian couple er who for the child. than cared endanger custody her would finding that abandonment, In the consent to absence of affirmed the child. This court unfitness, another, custody in father, finding neither abuse award to child, re- on appeal reunited mother a matter of law. nor error as discretion custody. fusing deprive the mother showing of the We that a there stated importance of the The court stressed the not a by the father was mother's unfitness (“the wel- family and maternal love unit custody: to an award prerequisite are fare of the child and its best interests jurisdiction not does law of this [T]he inevitably traced by nourished of a small compel the award mother”). its well-springs of life with child’s mother, is a fit although she child to the concluded, short, The court . “[i]n custodian, if the trial court on considera- ‘the that small children are presumption [is] evidence, concludes tion of all .,’ better off with their mother . will be the child interests of Bartlett,7 . we reaffirmed in Bartlett father. by custody to the awarding served ages.” of the recognizing experience [Id. 332.] Id. at 251 F.2d interpretation The court’s Barrett, Wash.D.L.Rptr. Koppen Schwier, Coles Schwier was reaffirmed 887, aff’d, A.2d 132 D.C.Mun.App., (1965), without men- A.2d 115 D.C.App., 207 illegiti 3-year-old (1959), the father of a This presumption. the tender tioning order award mate from an appealed court stated: signifi ing to the mother. said, it is not the As we have so often is not clear illegitimacy cance of the child’s parent either adversary right of Although opinion. from the trial court’s custody but welfare test, determinative espousing interests the best and the is paramount, the child that claim preferential a mother’s mentioned compel law of this The court indi guardianship. and natural the mother child to award of small claim preferential cated that child will be if the best interests forfeited due to conduct lost contract or awarding its served affording strong of the mother's evidence Coles, D.C.App., father. Coles fitness. Yet lack of natural affection and par- finding U.S.App.D.C. enced erroneous 7. 94 221 F.2d 508 adversary rights, child’s Interestingly, ents’ rather than the Bartlett mentioned however, noted, that rever- guidance welfare. The court tion in a to the trial court footnote as par- n.17, at 512 sal did indicate favoritism either Id 221 F.2d remand. & ent. award to & n.17. The court reversed influ- because the trial *10 1387 misconceptions any rather than to [Schwier, supra A.2d 332 at judge. trial The de- part on the of the 117.] judge trial opinion written of the tailed Dorsett, D.C.App., In Dorsett v. the best inter- clearly demonstrates that (1971), 290 this court found no abuse of Al- the child was considered. est of 8-year-old discretion where of an pre- though judge mentioned the son was awarded to the father. As we children are better sumption that small stated: Crowley, v. off with their Winter paramount The consideration in child cus- 106, 374 U.S.App.D.C. n.13 at tody cases is the of the child. welfare (1967), his decision F.2d at 320 n.13 Although . . . there is a standard, i. legal was based on the correct tion in this that children of e., child. Win- present welfare tender with their are better off Coles, ter, D.C.App., 204 supra; v. Coles finding mothеrs—absent a that the moth- (1964); Cooley v. A.2d er is presumption unfit —that D.C.Mun.App.,136 A.2d Washington, preclude judge considering a trial from 865; supra at foot- (1957). [Lindau, pointing evidence to another conclusion. omitted; emphasis note added.] 292; at footnote [Id. omitted.] Rzeszotarski, D.C.App., In Rzeszotarski father, upholding the award to the (1972), questioned the mother 296 A.2d 431 quoted length court at from Coles light to the father in custody award supra, terming leading Coles “the case in years presumption. In affirm- jurisdiction.” Dorsett, supra at 292. ing custody although Coles,supra, If had not settled the subor- unfit, not claimed to be mother was dinate years presumption, role of the tender pointed “presumption that out Lindau, this court did so in Lindau supra. merely controlling cannot but be viewed There, we said: usually persuasive relating as a factor improper legal The conten- standards 439; (Id. emphasis the issue of custody.” grounded appellant’s assump- tion is say, “The added.) The court went on to tion that the trial “felt that in viеw us shows extensive record in before the case ‘presumption’ in favor of maternal parties regard- by both presented evidence custody of children ... small ing would be in the a determination of what seeking husband had first Id. of the child.” interest prove the We mother’s unfitness.” disa- Monacelli, D.C.App., 296 In Monacelli v. gree assumption. with this In our view a (1972), refused to dis- this court A.2d reading fair of the record indicates that the father absent a turb a award to judge’s primary ‍​‌‌​‌‌‌​‌‌​​​​​‌​‌​​‌​​‌‌‌‌​​​​​​‌‌​​​‌‌‌​‌‌​​​‌‍the trial was the concern The changed circumstances. best interest of the child. several On controlling considera- court stated that the inquired occasions he of witnesses about welfare of the children always tion is Moreover, he child’s best interest. will, rule, general as a though even courts in an interviewed chambers maternal cus- indulge presumption that gain effort additional information. young interests of chil- tody best serves the testimony The relat- fact most plain made un- dren. This court alleged adultery ed to the wife’s adversary place to consider way fitness was to the in cases are no attributable parents.8 his present rights which the husband chose to Crowley, U.S.App.D.C. small are better off children 8. In Winter n.13, (1967), 374 F.2d F.2d 317 the circuit court held their mother. at 106 [Id. stated, also, change circumstances considered The court there n.13.] earlier court as a basis decree is not to be determined “[t]he for the welfare of minors requires testimony adversary rights deter to hear question custody. mine anew the other custodians.” [Id. suggested that circumstances relevant F.2d at 320.] the nonconclusive child’s welfare would include *11 shows, is one review of our cases if there Although “aware” of the tender Ross, presumption, evident, custody this in Ross v. thing is it is that does supra, passing pre- made reference to a a law if go not to the mother as matter of sumption then, again terming still judge re- fit The trial she a custodian. subject, quoted leading Coles a on the case defining the tains in child’s broad discretion from that decision: determining what crite- best interest and in jurisdiction law of this stated, “[T]he we have we apply; ria as may custody of a small compel the award of court’s determination by trial will abide mother, although fit child to the she a dictate will “as custodian, if the trial court on considera abuse finding of manifest upon a reversal evidence, tion of all the concludes Ross, supra at v. of discretion.” Ross the best interests of the child will be Rzeszotarski, quoting from Rzeszotarski by awarding custody to the fa served supra at 440. [Ross, quoting supra ther.” 448 — due in Whatever confusion exists be 332; Coles, supra emphasis added.] blurring large part of distinctions proceeded We then to affirm proceedings between which terminate ma- court’s award of the father. rights party favor of a third ternal Applying to a cus- the best interests test parents. note, custody disputes between tody dispute parents and between foster N.M.S., supra, re example, that In mother, N.M.S., natural this court in re Yet, opinion. by majority cited (1975), 9- D.C.App., 347 A.2d left the custody dispute not be- case did involve a year-old This child the foster home. parent a but parents, tween between being dispute between mother and third It is those cases where a parents. foster persons, agreed that a custody that the mother’s nonparent seeks undoubtedly, strongest has the claim to cus- telling quite preferential claim will ordinarily tody of her child and cannot has factor. Indeed the fact motherhood deprived without in those situations presumptive significance distinguished, unfitness. This ease introduce re- nonparent must because however, regain attempt as re- —not unfitness. buttal evidence of the mother’s the mother had committed custody; tain — the child See, Lloyd, D.C.App., 211 g., e. Johnson v. when four the welfare division preference ordinary A.2d 764 days old. “repre- party the mother over a third Moore, In a recent Moore v. D.C. law, merely but principle sents new App., (1978), custody of a 391 A.2d 762 expеrience human reflects the wisdom of 5-year-old girl the mother. was awarded ordinarily will be best cared that children disagreed We with the father’s contention ties of those bound to them the improperly accorded the trial court Jurney, D.C.Mun.App., nature.” Davis to the factor of presumptive significance (1958). See also D.C.Code fact that “motherhood.” Inclusion 1973, 21-101. with the mother for child had lived view, life, did most her in the court’s law on quite It is me that the evident to maternity given presump indicate that applied as tive the trial court significance. Because “leading in our case” essentially stated as the issue of presumption, did not invoke the That decision supra. of Coles propriety its was not reached. up set the “straw man” leaves no room for requires that opinion. It cases, majority in several Although mentioned approach balancing there be rarely has formed years presumption applies If a trial parents.9 As court. the two the bаsis of a decision this Benvenuto, is more than an See, determination g., A e. Benvenuto v. 14, 1977), is a com- (June love and affection. It Wash.D.L.Rptr. evaluation of posite, where alia, totality findings: of information inter of a its the trial court stated in accepted commonly experiences from the as a preference maternal reasona- which law, juris- of this conclusion contrary to the law mankind and the experiences. standing diction decisions of this draw from long under ble men would Dugan, 247 A.2d not, alluding See, g., As often as when Manchester court.10 e. is a de- (“[a]n inference (Me.1968) years presumption” the “tender fact which of a affirming custody award to the existence has done so in duction reason- us can experience teaches human the father.11 *12 proof from logically be drawn ably and often is used “presumption” C. The term facts”). other writer, According leading loosely. to a text ap- as years presumption” a rule If the “tender descriptiоn presumption “the of a as that, minimum, presumption is a plied jurisdiction the burden of in this a shifts review all, of fact. The preferred.” presumption it is a producing evidence is to be as McCormick, Wig- demonstrates this. And Evidence 342 at 803. of our case law § it, presumption a fact puts way: Wigmore puts more it this all; an really presumption a long legal as con- So the law attaches it have been else inference. Whatever sequences upon ofway duty in the the tender show years past, our decisions contrary opponent to come forward ais years in this “presumption” evidence, propriety applying there is no facts, misnomer. “presumption” to such term signifi- great probative however their decisions My court’s reading D. of this Evidence, IX, Vol. [Wigmore cance. on inference that leads conclude me to 2491, at 288.] is better years of tender ordinarily a child Thus, ordinarily is not essence of mother off of the in the specific to probative value attached in this limited in the trial court operates drawn, pro- or inferences but the facts appear seeking divorce way: parties if both consequences. cedural Id. stable, par- reasonably conscientious to be background, somewhat the same ents with “presump- What is often referred to as a three-year-old girl say us there is a let properly tion of fact” should be called an involved, probably would child Actually, inference. “the distinction be- off small child is better there infer the presumptions tween ‘of law’ and If on the being by reared the mother. tions ‘of fact’ is in truth difference example, the appears, other hand things reality presump- that are in and not markedly self-centered things tions are not mother . . . as the responsible parentally stable nor as presumptions Presump- at all.” Id. at 288. the inference inferences, likelihood tions of fact or as a matter of then all deciding custo- reasoning, probativе play refer to the value of never into comes how, This is dy arises of the father. evidentiary an fact. The inference issue in favor appropriate safety concerning child, personal custodian and that be the more also of a child, require the morals and health of the interests of the child the best [Id happiness youngster, reposed. her bas- at 1039.] where be so (No. security exist, D.C.Super.Ct. Bergstrom, Bergstrom derives tions of where she In 3312-77, fact, needs, findings unpublished most her essential comfort and Feb. stability, greatest what law), has the where she home environments are court’s task conclusions offered, are the determining what “between two there described good parents willingness pro- parenting capabilities to must of the child how care, prologue quality what has shown vide arranged upon of the best based the dictates Essentially, decision-making must us. child.” interests of the in- of the best be an unbiased consideration terests of the child based on her Cоles, progeny. supra, g., and its 10. E. Coles individual relationships characteristics and See, supra; g., Dorsett v. e. Coles parents and the child. Monacelli, supra; Dorsett, supra; Monacelli Rzeszotarski, supra. Rzeszotarski v. balance, that, and in finds The Court factors, would consideration the mother of all approach resolution it, should proceeding generally as I judges read are disputes. trial court in this in the real world of the approach It

jurisdiction. seems sensible majority any I do not means read me, reality. I do not and accords with in a a trial opinion prohibit explain why necessary think it should of tender dispute involving child child, girl example, is better infant consideration, bal- while taking from into being through early off childhood reared factors, such as those ancing all realities diligent loving, responsible, than appoint- amicus curiae expressed learned diligent loving responsible, father.12 by the court in this case: ed view that “the agree majority’s with the baby young A and a new-born provide ‘mothering’ ability person warmth, of physical certain needs gen- necessarily correspond affection, nothing say cuddling, of (emphasis parent der of the . . .” food, receive from its which can best added). point. But that misses the diminish as the needs mother. These *13 not a occurs.13 question necessarily of what older, may disappear at and grows But, assuming age 7 or thereabouts. holds here that “trial This court well motivat- equally be both question courts shall decide the delicate ed, the moth- your it writer that seems to solely by what child’s best interests provide by nature er is better endowed particular to the facts of the case reference are, after There for these basic needs. without to the crutch of a resort all, biological physiological and certain party. tion See the Dis- in favor either and female male differences between Marriage trict and Divorce of Columbia mod- all assaults of which will withstand Act, supra 108(d) (amending and § Curiae, of Amicus day ern mores. [Brief -914).”14 16-911(4) D.C.Code §§ Esq., filed June Mayer, H. Charles as my analysis If of our ease as well law 1978.] subject presumptions law on the cor- rect, “presumption” nor opinion we have neither court’s I do not read the Though simple judge mat- “crutch.” It would have been a trial prohibiting earthiness as evidence, hearing in this case to balancing ter for division all the assessing and reaffirming supra, opinion issue an of clarification might a few words add level. misunderstanding to the extent felt at the trial progeny and its avoid custody de- any lingering judges uncertain- faced with necessary, remove Because trial guidance, I the trial court look to this case ty any be—on how cisions will there —if specifically being any- things The Council enumerated be all 12. If it were to custody prop- superior equal, financial be near criteria to erty considered where position, a father’s believe, affairs, ordinary We con- determinations. state distribution consideration, controlling groups, then we criteria that these sidered did bar give giant step back toward the will have taken a order to omitted in should have been century as the dominant flexibility last figure when the father in the future in to the courts more adapting automatically custody got almost factors to reflect the the relevant Nevertheless, children. society. changing values in custody property- nor is clear that neither granted children is 13. Where of small anything significant- distribution criteria add ly unlikely he not will law, and, point, serve as at this new to the affordable, remarry, employ some- or either if prin- nothing a codification more than are the one care for a home. The chances developed These ciples law. in the case child-caring and the is in fashion resumed practical changes effect will have little “nurturing” the actual rou- father’s recedes cases. property division either day-to-day living. a remar- tine riаge, by there is If Illusory Long, Real & [Green Changes likely not “mothering” done would Divorce Marriage and of the 1977 stepmother by the the father but child’s Act, Cath.U.L.Rev., (Spring Vol. No. instead ‍​‌‌​‌‌‌​‌‌​​​​​‌​‌​​‌​​‌‌‌‌​​​​​​‌‌​​​‌‌‌​‌‌​​​‌‍the mother. emphasis 1978); added.] analysis interesting Mar- the 1977 14.In an riage and concluded: Divorce Act authors ten said we abide the trial must appear

think it unwise to even dis- “as the approach. court’s determination on couraging realistic upon finding law will dictate reversal This change decision does not what g, is of E. abuse of discretion.” manifest Ross, supra quoting Ross v. from fundamental to our in deciding disputes. Rzeszotarski, The majority opinion supra seeks to Rzeszotarski v. at 440. abolish a rule matter, that did exist As actually practical opinion majority perceived by majori- will have little or no effect on the future ty. The trial retains broad discretion disputes resolution real in defining the child’s interests in world of the trial so it seems to court—or applying appropriate criteria. We have of- me.