Wilkins v. Ferguson
D.C. Court of Appeals (2007)
DV LEAP won a resounding victory in this case, establishing a powerful precedent requiring courts to place safety first and to give due weight to a history of battering when considering child abuse allegations in the context of custody. This case was an exception to DV LEAP’s appellate practice in that DV LEAP accepted the case at the trial level. DV LEAP accepted the case at the trial level to make a strong record for appeal on an important question of law regarding custody decisions where abuse is at issue.
The case involved the sexual abuse of a 4-year old child of the divorced parties, after a long history of severe adult domestic violence. The case also concerned the somewhat new theory of “parental alienation” which has been widely misused in abuse and custody cases to defeat abuse claims. DV LEAP co-counseled the case with a law firm, and led the development of the social science and psychological record. DV LEAP’s expert sought to educate the court about the links between domestic violence and child sexual abuse, and offered her opinion, based on review of the record, that the abuse allegations were strongly supported.
The court’s opposing expert, based in part on the unscientifically based theory of “parental alienation,” speculated that the allegations might be the result of the “high conflict” nature of the case. In December 2005, the court ruled that there was “insufficient” evidence of sexual abuse, although the “sheer number” of complaints by the child were “cause for concern.” The court ordered unsupervised visitation to re-commence, but eliminated overnights.
New pro bono counsel co-counseled the appeal with DV LEAP. In addition, a powerful amicus brief was submitted on behalf of Justice for Children, the Leadership Council on Child Abuse and Intimate Partner Violence, and four local domestic violence organizations.
In June 2007, only one month after argument, a unanimous panel of the D.C. Court of Appeals issued a lengthy and thorough opinion that powerfully vindicated DV LEAP’s position in this case and will be extremely important for future victims of domestic violence who litigate custody and abuse cases in D.C. Most importantly: the Court held clearly that children’s safety is always the priority in cases concerning abuse. In particular, the Court held that under D.C. statutes, "a history of domestic abuse will always be relevant at every custody or visitation proceeding in which the abuser is involved" - something which had been hotly contested by the opposing party. The Court also expressly affirmed that the burden is on the abuser to demonstrate the child's safety in visitation. Finally, the Court also affirmed that "a parent's commission of an intrafamily offense could impact the custody decision and result in a limitation on parental visitation rights. . . and [that] intrafamily offenses result in both emotional and physical harm to children."
This victory was the result of the extraordinary combined efforts of two major law firms, countless pro bono attorneys, and DV LEAP’s in-house staff.
Click here to read the appellant's brief.
Click here to read the amicus brief.
Click here to read the court's opinion.