US Court rules on relevance of domestic violence

Wilkins v. Ferguson, Nos. 05-FM-1555 and 05-FM-1556
(D.C. Court of Appeals, decided July 19, 2007)
Holding: DC Court of Appeals reversed the order of the trial court allowing the
appellant’s former husband to have unsupervised visits with their biological
daughter, despite the court’s prior findings that he had committed an intra-family
offense against his former wife and child, and even though no health
professionals recommended unsupervised visits.
Summary: Mr. Ferguson and Ms. Wilkins divorced and the court ordered joint
legal custody, primary placement with the mother, and reasonable rights of
visitation for the father. After the divorce was filed, but before it was final, there
were allegations made by the child that Mr. Ferguson had touched her
inappropriately. There was an investigation while a 12 month protective order
was in place, and then the court found that Mr. Ferguson had touched the child
inappropriately. His supervised visitation was suspended for the duration of the
protective order, and continued after the findings. The court then heard from four
experts, none of whom recommended that it would be in the best interests of the
child to have unsupervised visits with her father. The trial court held that there
was insufficient evidence to conclude that Mr. Ferguson had engaged in
inappropriate touching of his daughter, and ordered for Mr. Ferguson to have
unsupervised visitation with his daughter without any overnight stays.
The Court of Appeals reversed the decision because the record did not support
the factual findings reached by the trial court. The opinion emphasizes several
points in coming to its conclusion. First, the court states outright that “a history of
domestic violence abuse will always be relevant to every custody and visitation
proceeding in which the abuser is involved.” The court makes it clear that the
legislature’s intent in D.C. Code § 16-914(a)(3)(F) is to command that the burden
be on the abuser to demonstrate the child’s safety in visitation, and even when
read in conjunction with the intent behind D.C. Code § 16-914(f)(1) and (2), the
burden is not meant to be shifted to the custodial parent to demonstrate
otherwise. Second, the court affirmed a DC Council finding that “a parent’s
commission of an intra-family offense could impact the custody decision and
result in a limitation on parental visitation rights…and [that] intra-family offenses
result in both emotional and physical harm to children.” Third, the court stressed
that a trial court may not ignore the uncontradicted opinions of expert witnesses
without basis. Additionally, the Court of Appeals expresses concern with the trial
court’s focus on whether the child’s allegations were true and reasons why the
child might fabricate them. Citing several child sexual abuse cases as well as
testimony from an expert on the psychological literature pertaining to child sexual
abuse, the court held that the trial court’s order for unsupervised visitation lacked
“a firm factual foundation.”

Comment: This case is interesting to contrast with the situation in Australia. As long ago as 1988, the High Court held in M and M, and B and B that the court was not bound to find whether an offence had been committed of child sexual abuse, nor even that it had occurred on the balance of probabilities, but that there was an unacceptable risk of the child sexual abuse having occurred. If Wilkins v Ferguson were decided in Australia, then on the unacceptable risk test, if no more, the time between father and child would have been supervised.

The case also illustrates an old fallacy: If there is a danger to a child in being molested, what difference does it make if time with the father occurs just during the daylight hours or overnight as well? It is clear that the trial judge viewed that daytime only was inherently safer. How does this concur with objective evidence? It is an all too common fact that some perpetrators molest their victims during daylight hours.
Source: American Bar Association