Who can get custody and visitation?
Generally, at least one of the child’s parents is entitled to custody, unless there is strong evidence that both parents are unfit or unless it is not in the child’s best interest.1
If it would not be in the child’s best interest for either parent to have custody, the judge can give custody to another person depending on what she/he believes is in the best interest of the child.2
1 D.C. Code § 16-914(a)(2),(3)
2 D.C. Code § 16-831.03(c)(2)
Can a parent who committed violence get custody or visitation?
Possibly, yes. The judge is supposed to take into account a parent’s history of domestic violence when making custody or visitation decision but many other factors will also be considered and the abusive parent may still receive custody or visitation rights. If a judge determines that domestic violence, child abuse, neglect, or parental kidnapping has occurred, the judge should presume that joint custody (or sole custody) is not in the best interest of the child (but the abusive parent can try to present evidence to change the judge’s mind). If the judge believes that the parent committed family violence and the judge still gives that parent custody or visitation rights, the judge has to make a written statement outlining what factors support his/her decision.1
The judge can give the abusive parent visitation but only if the judge finds that the child and custodial parent can be protected from potential harm from the abusive parent. It is up to the parent who committed the violence to prove that visitation will not endanger the child or harm the child’s emotional development.2 However, if the child was conceived as a result of a sexual assault against you by the abuser and he was convicted of this crime in criminal court, the law does not allow him to get custody or visitation.3 For more information, see If my child was conceived from a sexual assault, can the biological father get custody or visitation?
It is recommended that you seek legal advice from a lawyer to assist you in a custody case involving domestic violence issues. For information on how to find a lawyer see our DC Finding a Lawyer page.
1 D.C. Code § 16-914(a)(2),(a-1)
2 D.C. Code § 16-914(a-1)
3 D.C. Code § 16-914(k)
If my child was conceived from a sexual assault, can the biological father get custody or visitation?
If your child was conceived as the result first degree sexual abuse, second degree sexual abuse, or child sexual abuse against you, the biological father cannot be granted legal custody or physical custody of the child, or visitation with the child. Note: The biological father must be convicted in criminal court of the crime in order for this law to apply. However, the biological father can still be responsible to pay child support for the child even if he cannot see the child.1
1 D.C. Code § 16-914(k)
Can a grandparent or other non-parent file for custody?
It depends. A non-parent (referred to by the court as a “third party”) can file for custody or file to “intervene” in an existing custody proceeding if the parent who is/has been the primary caretaker of the child within the past 3 years consents to the third party being able to request custody or if one of the following conditions are met:
- The third party is living with the child and there is an “exceptional circumstance” that makes giving custody to the third party necessary to prevent harm to the child; or
- The third party has:
- lived in the same household as the child for at least 4 of the 6 months immediately before s/he filed the complaint or motion for custody; or, if the child is under the age of 6 months, for at least half of the child’s life; and
- primarily assumed the duties and obligations for which a parent is legally responsible, including providing the child with food, clothing, shelter, education, financial support, and other care to meet the child’s needs.1
(Note: A third party who is employed by the child’s parent to provide child care duties cannot file for custody even if s/he meets any of the above circumstances.)2
Another way that a non-parent can file for custody or file to “intervene” in a custody proceeding is if the person can prove with clear and convincing evidence that s/he is a “de facto parent.”3 A “de facto parent” is someone who has taken on full and permanent responsibilities as the child’s parent and, with the biological parents’ agreement, holds himself/herself out as the child’s parent.4 If you think this may apply to you, please read the legal definition of “de facto parent” on our Statutes page to see the requirements for proving that you are the de facto parent.
Remember, as a non-parent, even though you may have the right to file for custody based on one of the circumstances discussed above, a judge may or may not grant you custody. A judge will look at many factors to try to decide if giving you custody is in the child’s best interest. You can read those factors on our Statutes page here.
1 D.C. Code § 16-831.02(a)(1)
2 D.C. Code § 16-831.02(a)(2)
3 D.C. Code § 16-831.03
4 D.C. Code § 16-831.01