Bazemore v. Davis

Decision Date01 December 1978
Docket NumberNo. 12093.,12093.
Citation394 A.2d 1377
PartiesLawrence BAZEMORE, Appellant, v. Sharon DAVIS, Appellee.
CourtD.C. Court of Appeals

Fortunato J. Mendes, Washington, D. C., for appellant.

Richard S. Bromberg, Washington, D. C., with whom Glenn H. Angelo and Coolidge N. McCants, Washington, D. C., were on the brief, for appellee.

John W. Karr, Washington, D. C., appointed by this court, amicus curiae for appellant.

Charles H. Mayer, Washington, D. C., appointed by this court, amicus curiae for appellee.

Before NEWMAN,* Chief Judge, and KELLY, KERN, GALLAGHER,* NEBEKER, YEAGLEY, HARRIS, MACK* and FERREN, Associate Judges.

MACK, Associate Judge:

Circumstances of this case have precipitated en banc consideration of the issue of whether, in child custody disputes between natural parents, there is a valid presumption that the interest of a child of tender years is best served in the custody of the mother.

The dispute arose on April 18, 1975, when appellee Sharon Davis sued appellant Lawrence Bazemore to regain custody of their minor child, Tonya. The case was heard on appellee's motion for pendente lite custody by Judge Washington on February 10, 1976. As a result of that hearing, Judge Washington determined that

. . . the health and safety of the child are presently better served at the home of [appellant] than at the home of [appellee];

. . . the environment for the child is better in [appellant's] home than in [appellee's] home at this time;

. . permanent custody of Tonya can only be awarded to either party after the Intra-Family and Neglect Branch, Social Services Division, Superior Court of the District of Columbia, investigates the home of both [appellee] and [appellant] and makes a recommendation available to this court;. . . .

Accordingly, on May 10, 1976, Judge Washington issued an order awarding temporary custody to appellant Lawrence Bazemore, pending an investigation by the Intra-Family and Neglect Branch of the Social Services Division of the Superior Court. On August 20, 1976, the Intra-Family and Neglect Branch filed a memorandum recommending that permanent custody of the child be awarded to the father, Lawrence Bazemore. However, because of the intervening illness of Judge Washington, trial was held before Judge Hamilton on January 12, 1977, at the conclusion of which Judge Hamilton awarded custody to the mother, Sharon Davis. It is this last decision which was appealed, and which has now been reviewed by both the original division and the court en banc. We reverse and remand.

I.

The record reveals that the child, Tonya, was born on October 18, 1972, out of wedlock. From the date of her birth until July 1974, Tonya lived with her mother, appellee Sharon Davis, in the home of Ms. Davis' parents. Throughout this period Ms. Davis was attending school, and Ms. Davis' mother took care of Tonya. In August 1974, Ms. Davis voluntarily relinquished custody of Tonya to appellant Lawrence Bazemore, the child's father, who also was living in his parents' home. As Mr. Bazemore was both going to school and working, his mother took care of Tonya.

At the time of the trial — January 1977 — Tonya was still living with her father, Lawrence Bazemore, in the home of his parents, and was still being cared for by her paternal grandmother. Tonya's mother, Sharon Davis, was also still living with her parents. She was still attending school, but had, in addition, made arrangements to work part-time. Ms. Davis acknowledged that if she regained custody of Tonya, the child would be cared for once more by her maternal grandmother.

The trial court ruled from the bench in favor of the child's mother, giving the following explanation:

Now, as you both know, in cases of this nature, the law prefers the mother — the natural mother as the custodian of the child and only denies to the natural mother the custody of the child when it can be shown and demonstrated by reasonable convincing and clear evidence that such natural mother is unfit as a parent. That is to say, such natural mother is either unwilling or unable to discharge those duties and responsibilities normally required in order to properly and adequately in a reasonable manner provide for the child. And although defendant made that allegation in his answer in response to this petition of custody by the parent, it does not appear to me the evidence has clearly and convincingly established, as it must do under the law, that the natural mother is unfit — that is to say either unwilling or unable to perform those duties reasonably necessary for the welfare of the child.

* * * * * *

The next inquiry is what, under such circumstances, would be in the best interest of the child; but, we don't even reach that point under the law because, as I stated, the law does not deprive a natural mother — that is one of the rights of motherhood which only mothers can have, the natural right to have their offspring. And, unless it can be demonstrated that they are unfit to have it and, unfortunately, the civil law has incorporated that the natural right of the mother to have custody of her offspring. That is the natural and the civil law.

So, under the circumstances, gentlemen, I don't know anything that I can do except give this child to its mother . . .

In support of its ruling, the court prepared a brief written order citing one case. The order reads, in relevant part, as follows:

Undoubtedly, the mother of a minor child of tender years has the strongest claim to custody of her child and ordinarily cannot be deprived of that custody except upon a showing that she is unfit or unable to care for the child. (Matter of N.M.S., [D.C.App.] 347 A.2d 924). Here there being no such showing, it is hereby

ORDERED, ADJUDGED, and DECREED that Ms. Sharon Davis be awarded custody of the minor child, Tonya LaShurn Davis.

II.

In their briefs and in oral argument before this court, all parties to this case agree that the proper standard to be applied in custody disputes between the natural mother and natural father of a child is the best interest of the child. The best-interest-of-the-child concept has, indeed, been the standard in this jurisdiction since the beginning of the century. Ross v. Ross, D.C.App., 339 A.2d 447, 448 (1975); Monacelli v. Monacelli, D.C.App., 296 A.2d 445, 447 (1972); Rzeszotarski v. Rzeszotarski, D.C.App., 296 A.2d 431, 439 (1972); Lindau v. Lindau, D.C.App., 286 A.2d 864, 865 (1972); Dorsett v. Dorsett, D.C.App., 281 A.2d 290, 292 (1972); Coles v. Coles, D.C. App., 204 A.2d 330, 331 (1964); Bartlett v. Bartlett, 94 U.S.App.D.C. 190, 192-93, 221 F.2d 508, 510-12 (1954); Stickel v. Stickel, 18 App.D.C. 149, 151 (1901); Wells v. Wells, 11 App.D.C. 392, 395 (1897). See also Utley v. Utley, D.C.App., 364 A.2d 1167, 1170 (1976) and cases cited therein. Cf. In re J.S.R., D.C.App., 374 A.2d 860, 863 (1977). The best interest of the child is also the standard used in custody disputes between the natural father and mother of an illegitimate child. See Barrett v. Koppen, D.C. Mun.App., 154 A.2d 132 (1959).1

In the instant case, the trial court relied on the proposition that a fit mother can never be deprived of custody, and explicitly refused to reach the issue of the best interest of the child. In this, the court clearly erred.2

Counsel for appellee, however argues that in spite of the trial court's error we can affirm that court's decision. The argument can be stated as follows: (A) the trial court explicitly found that in most respects the parties were similarly situated; (B) there is, in this jurisdiction, a presumption that young children are better off with their mother; (C) accordingly, we can infer that in this case it would be in Tonya's best interest to go with her mother.

III.

As to appellee's first assertion, the trial court did not find that in all respects appellant and appellee were similarly situated. Rather, the court found that with respect to financial, educational, cultural, and familial circumstances, there was no substantial difference between the parties. In spite of these similarities, at least one extremely important difference between the circumstances of appellant and appellee is clear from the face of the record, namely, that at the time of the trial, the child, then over four years old, was living with the father and had been living with him for the previous two and a half years. As to this, the court significantly noted: "Bouncing this child back and forth between mother and father, paternal and maternal grandmothers, has not and will not be healthy for her. Each time she is moved, she gets a scar and who knows whether if ever it will be healed."

As to the second part of appellee's argument, it is true that in this jurisdiction there is, at present, a presumption that small children are better off with their mother. Ross v. Ross, supra at 448; Monacelli v. Monacelli, supra at 447; Rzeszotarski v. Rzeszotarski, supra at 439; Lindau v. Lindau, supra at 865; Dorsett v. Dorsett, supra at 292; Coles v. Coles, supra at 331; Boone v. Boone, 80 U.S.App.D.C. 152, 154 150 F.2d 153, 155 (1945). It is this presumption that we now reexamine. See generally Roth, The Tender Years Presumption, 15 J.Fam.L. 423 and articles cited therein at 423 n. 1 (1976-77); Johnson v. Johnson, 564 P.2d 71, 75 (Alaska 1977); Strand v. Strand, 41 Ill.App.3d 651, 656, 355 N.E.2d 47, 52 (1976); Pratt v. Pratt, 29 Ill.App.3d 214, 216, 330 N.E.2d 244, 246 (1975); In re Marriage of Bowen, 219 N.W.2d 683, 688 (Iowa 1974); State ex rel. Watts v. Watts, 77 Misc.2d 178, 350 N.Y.S.2d 285 (Fam.Ct. 1973); Commonwealth ex rel. Spriggs v. Carson, 470 Pa. 290, 368 A.2d 635, 639 (1977) (opinion of Nix, J.; three judges concurring in the result).

Under common law, there was no presumption in favor of the mother. To the contrary, the father, as a matter of right, was entitled to the custody of...

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