Summary
The District of Columbia Court of Appeals reviewed a custody order awarding the father sole physical custody of the parties’ three children. The court held that the trial court did not abuse its discretion by denying the mother’s day-of-trial continuance request and that the evidence otherwise supported the custody determination. It remanded for further inquiry into the children’s custodial preferences because the court had not considered their wishes as required where practicable.
Topics
Practice areas
Questions Presented
- Whether the trial court abused its discretion by denying appellant's counsel's day-of-trial request for a continuance when appellant failed to appear.
- Whether the trial court was required to interview the children or otherwise hear evidence concerning their custodial preferences before deciding custody.
- Whether the trial court was required to appoint a guardian ad litem sua sponte because appellant was absent from trial.
- Whether the evidence was sufficient to support the custody award.
- Whether the proceeding was a relocation case requiring application of the additional relocation factors identified in Estopina v. O'Brian.
Holdings
- The trial court did not abuse its discretion in denying appellant's counsel's oral, day-of-trial request for a continuance because appellant did not comply with the applicable rule, did not establish good cause, did not propose alternative dates or demonstrate efforts to obtain appellee's consent, and had a history of nonappearance.
- The trial court was required to conduct a further inquiry into the children's custodial preferences because the governing custody statute requires consideration of the child's wishes where practicable, the children were old enough to express an opinion, and the record contained no evidence of their wishes.
- The trial court was not required to appoint a guardian ad litem sua sponte merely because appellant failed to appear at trial.
- Apart from the missing evidence concerning the children's wishes, the evidence was not insufficient to support the trial court's custody determination.
- The trial court did not err by treating the matter as an ordinary custody case rather than a relocation case because the children were already living and attending school in the District when the complaint was filed, and appellant presented no evidence contradicting appellee's testimony that their presence resulted from the parties' prior agreement.
Key quotations
“When determining a child’s best interest in a custody proceeding, the court is required by statute to consider “all relevant factors,” specifically including “the wishes of the child as to his or her custodian, where practicable.”” (522)
“This case presented such a situation.” (522)
“For the foregoing reasons, we remand for further proceedings to ascertain the wishes of the children respecting their custody and such additional findings and conclusions of law as may thereupon be appropriate and in accord with this opinion.” (523)
Factual background
The parties were married in 1997 and had three children, who lived with appellant in Ethiopia before moving to the District of Columbia in June 2013 to live with appellee and attend school. The trial court credited appellee's testimony that the parties had agreed that the children should move to the United States for their education. Appellant repeatedly failed to appear in the custody proceedings, including the August 2014 custody trial, while her counsel participated and cross-examined appellee. The trial court awarded appellee sole physical custody, but did not obtain evidence concerning the children's custodial preferences.
Procedural history
Appellant filed an emergency complaint for child custody after the children moved from Ethiopia to the District of Columbia and remained with appellee. The trial court denied emergency relief, held custody proceedings in appellant's absence after denying counsel's request for a continuance, entered a temporary custody order, and later entered a final order awarding appellee sole physical custody and appellant reasonable visitation. Appellant timely appealed.
Remand instructions
The trial court must conduct a further inquiry to ascertain the children's wishes concerning custody and make any additional findings and conclusions of law that are appropriate and consistent with the opinion.