Jl. B. v. L.B. and M.S.

Notice: This opinion is subject to formal revision before publication in the
Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the
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            DISTRICT OF COLUMBIA COURT OF APPEALS

                                 No. 21-FM-134

                               JL.B., APPELLANT,

                                        V.

                           L.B. and M.S., APPELLEES.

                         Appeal from the Superior Court
                          of the District of Columbia
                               (2011-DRB-627)

                       (Hon. Steven N. Berk, Trial Judge)

(Argued September 15, 2022                             Decided December 15, 2022)

       Massiel Leiva, with whom Donald P. Salzman, Annamaria Kimball, and
Alexis Alvarez were on the brief, for appellant Jl.B.

      No brief was filed for appellees L.B. and M.S.

      Melissa Colangelo, with whom Krystal Montgomery was on the brief, as
guardian ad litem representing the interests of Ja.B.

      Sasha Drobnick, Elizabeth Vogel, Joshua L. Richardson, and Caitlin M.
Kasmar filed a brief for the Domestic Violence Legal Empowerment and Appeals
Project as amicus curiae in support of appellant Jl.B.

      Before MCLEESE and DEAHL, Associate Judges, and RUIZ, Senior Judge.
                                           2

       DEAHL, Associate Judge: This custody dispute concerns Ja.B., who is now

fourteen years old. The conflict is largely between Ja.B.’s mother, Jl.B., and his

grandmother, L.B., though Ja.B.’s father, M.S., is also involved. Jl.B. was twenty

years old when she had Ja.B. in 2008, and she enlisted her mother L.B. to help raise

him.   M.S. was largely out of the equation at that time.           While the custody

arrangement was somewhat variable in the years that followed, by 2016, Jl.B. and

L.B. had reached an agreement under which they shared roughly equal physical

custody of Ja.B.: (1) L.B. had Ja.B. on school days; (2) Jl.B. had Ja.B. on weekends

and vacations, including the long summer vacation; and (3) M.S. had a weekly visit

with Ja.B. That was their arrangement for several years, and Ja.B. seemed to thrive

under it.



       Jl.B. sought to modify that custody arrangement in 2019 and moved for sole

legal and physical custody of her son. After several days of trial, the court denied

that request and initially issued an order preserving the status quo, stressing Ja.B.’s

success under the existing arrangement and his need for continuity. But shortly after

the court issued that order, Jl.B.’s husband, J.H., physically attacked Jl.B. in Ja.B.’s

presence. Ja.B.’s guardian ad litem asked the court to reopen the evidence and

reconsider its order in light of that incident and its effects on Ja.B. The court granted

that request and, after hearing an additional day of testimony, amended its order
                                           3

substantially, stripping Jl.B. of all custody save for two supervised visits with Ja.B.

per month. The court also amended its order to grant joint legal custody to M.S. and

L.B.



        Jl.B. now appeals that decision. She argues that the trial court (1) erred in

concluding that the statutory presumption favoring parental custody had been

rebutted, see 

(a); (2) violated the statutory prohibition against

using the fact that a parent has been the victim of domestic violence in determining

the parental presumption had been rebutted, see 

 § 16-831.07(c); and (3) abused

its discretion in applying the “best interests of the child” factors when fashioning the

current custody arrangement, see id. § 16-831.08(a). We disagree with Jl.B. on the

first point and conclude that any error as to the second point was harmless where the

statutory presumption was rebutted prior to and independent of the domestic abuse

incident and its aftermath. We agree with Jl.B. on her third point, however, and we

therefore vacate the trial court’s custody order and remand for further proceedings.



                                           I.



       Ja.B. was born to Jl.B. and M.S. in 2008. For the first eight years or so of his

life, Ja.B. and his mother both lived at L.B.’s house in Northwest D.C., though there

were stretches where L.B. would kick Jl.B. out for being “disrespectful and
                                             4

belligerent.” While the trio lived together, L.B. and Jl.B. would both care for Ja.B.,

though the majority of parenting responsibilities seemed to fall on L.B. during the

early years, as Jl.B. finished her schooling. In 2011, L.B. and Jl.B. agreed to share

joint legal and physical custody of Ja.B., and L.B. sought a court order to that effect.

The court—by all accounts, erroneously—awarded L.B. sole legal and physical

custody of Ja.B. Jl.B. has since filed a series of motions to modify that erroneous

custody order, to no avail. Her earliest request to modify the custody order, made

mere months after the erroneous order issued, asked the court to give her joint

custody of Ja.B. That request was denied because Jl.B. apparently failed to properly

serve her motion on the requisite parties.



      Jl.B. again tried to modify the custody order in 2016, by which point she had

married J.H. and moved out of L.B.’s house, though Ja.B. continued to live with L.B.

This time Jl.B. sought sole legal and physical custody of Ja.B. After mediation, Jl.B.

and L.B. agreed that Ja.B. would live with L.B. during the school year and with Jl.B.

on weekends and school breaks (a roughly even split of the calendar year). M.S. did

not take part in the mediation, but Jl.B. and L.B. agreed that he would continue his

established practice of visiting Ja.B. about once a week.
                                           5

      Ja.B. was happy with this 2016 arrangement and thrived under it. He attended

school near L.B.’s house in Northwest D.C., where he got good grades and was on

his school’s track and field and cross country teams. He had many friends, and some

of his teachers described Ja.B. as their “best student.” L.B. tended to Ja.B.’s

education: she helped him with his homework, communicated with his teachers, and

attended parent-teacher conferences. Ja.B. liked spending time with both his parents

and his grandmother. He also enjoyed spending time with his maternal and paternal

half-sisters. All in all, Ja.B. testified that he “like[d] the way that things are” under

the arrangement.



      But not everybody was content with it. Jl.B. still wanted sole custody of her

son, and in 2019, she again sought a modification of the controlling custody order

and requested sole legal and physical custody of Ja.B. Animating her desire for sole

custody is the fact that Jl.B. has fraught relationships with both L.B. and M.S. and

doubts their abilities as caregivers; M.S. was notably convicted of assaulting Jl.B.

while she was pregnant with Ja.B. L.B. and M.S., who are on better terms with one

another, both opposed the requested modification. The case went to trial, and the

court appointed a guardian ad litem to represent Ja.B.’s interests.
                                          6

      The guardian ad litem called Jl.B., L.B., and M.S. as witnesses, and

questioned each of them about their suitability as parents. In response to those

questions, Jl.B. acknowledged that she has been diagnosed with bipolar disorder, but

denied that she was currently affected by the disorder and noted that she had not

been on any medication since 2017. Rather, she described herself as having mood

swings that resulted from certain stressors. L.B. testified that she herself had lupus

and depression, but believed that she could effectively manage those conditions and

that neither affected her day-to-day functioning. She also explained that she suffered

a heart attack in 2018 and took medication and regularly saw her cardiologist. M.S.

testified that he had no relevant mental or physical health issues. All three testified

that they had positive relationships with Ja.B., which Ja.B. confirmed in his own

testimony.



      A court-appointed psychologist, Dr. Seth King, also testified about the parties’

relationships with Ja.B. and their abilities to co-parent. Dr. King described Ja.B.’s

relationships with Jl.B., L.B., and M.S. in generally positive terms and expressed

“[n]o major concerns” about any of their abilities to care for Ja.B. Dr. King noted

that the conflict between Jl.B., on the one hand, and L.B. and M.S., on the other,

limited “their ability to work collaboratively together.” He further opined that if

Jl.B. were given sole legal and physical custody of Ja.B., it was his impression that
                                          7

Jl.B. would cut off all contact between L.B. and Ja.B., which he thought would be

detrimental to Ja.B.’s well-being. Dr. King also expressed concerns about Jl.B.’s

diagnosed but untreated bipolar disorder, which he noted could lead to periods where

her “emotional functioning” and “emotional stability” were compromised.



      After the hearing, the court issued a detailed order in May 2020 that essentially

maintained the 2016 custody arrangement. It ordered that while L.B. would retain

sole legal custody of Ja.B., L.B. and Jl.B. would share joint physical custody—with

Ja.B. spending a roughly equal number of days with each of them—and M.S. would

retain his weekly visitation. In reaching that result, the court acknowledged the

statutory presumption favoring custody with parents, 

(a), a

presumption that operated against granting L.B. any amount of custody. But it found

the presumption had been overcome in two statutorily enumerated ways: (1) that

excluding L.B. from the custody arrangement “would be detrimental to the physical

or emotional well-being of” Ja.B., 

(a)(2); and (2) “[t]hat

exceptional circumstances . . . support[ed] rebuttal of the [parental] presumption,”

 § 16-831.07(a)(3). Having found the parental presumption rebutted, the court

concluded that it was in Ja.B.’s best interests to maintain the status quo, keeping him

in his current home with L.B. during the school year, but still allowing him to spend
                                         8

substantial time with both his parents. The court’s reasoning was largely based on

Ja.B.’s considerable success and happiness under the existing arrangement.



      About two weeks after the court issued that order maintaining the status quo,

Jl.B. was physically beaten in her own home by her husband, J.H., while Ja.B. was

staying with her. Following this incident, the guardian ad litem filed a motion to

reopen trial and amend the judgment in light of new evidence. See Super. Ct. Dom.

Rel. R. 59(a)(2). The court held another evidentiary hearing, in which L.B., Jl.B.,

and M.S. testified about the battery and its aftermath. Ja.B. did not testify or

otherwise indicate that his preference for maintaining the status quo had changed.

The credited testimony was as follows.



      On the night of the battery, Ja.B. texted M.S. for help stating that “stepdad

was beating on” Jl.B. M.S. immediately called Ja.B. and could hear J.H. and Jl.B.

in the background, both yelling, screaming, and cursing. J.H. eventually snatched

the phone from Ja.B.’s hand and ended the call. M.S. then called the police, and

when they arrived, Ja.B. was physically unharmed, but appeared afraid and had

“blood all over his jeans,” apparently from trying to break up the fight. L.B. and

M.S. both arrived on the scene after the police, and Jl.B. either told Ja.B., or told

L.B. within Ja.B.’s earshot, that Ja.B. was not welcome back into her house because
                                             9

he had called M.S. for help. She repeated that remark in a text to M.S. the following

morning. This incident appeared to have shaken Ja.B. For a few weeks afterward,

he seemed unusually “quiet and withdrawn,” and he told L.B. he wanted to enroll in

therapy.



      J.H. was arrested and criminally charged. The court initially ordered J.H. to

stay away from Jl.B., though the following month that order was modified to simply

direct him not to abuse or harass her. Jl.B. testified that J.H. was not welcome back

into her home unless he completed a domestic violence program. At the time Jl.B.

testified, J.H. had not yet begun that program. Yet L.B. testified that she had seen

J.H. at Jl.B.’s house in the months that immediately followed the beating. L.B. also

testified that this was not the first or last time J.H. had beaten Jl.B.: L.B. claimed

that there had been “several” “physical altercations” between the two earlier in 2020

and that additional “acts of violence” had occurred since the incident, though she did

not elaborate on the basis for her belief.



      The court issued a new custody order in January 2021, superseding the May

2020 order. The court largely incorporated all of its findings of fact and reasoning

from the May 2020 order into this new order, including its persistent themes that

Ja.B. was thriving and happy under the status quo custody arrangement. The only
                                         10

material change in the court’s order was that it detailed the incident of domestic

violence and its aftermath, which led the court to then drastically alter the order’s

bottom line. Rather than maintaining the status quo, the court granted joint legal and

physical custody to L.B. and M.S., and granted Jl.B. just two visits per month—or

twenty-four per year—all of which were to be supervised. Jl.B. now appeals that

order.



                                         II.



         In the District of Columbia, there is a strong statutory presumption, with

“constitutional underpinnings,” that parents should have custody of their children.

W.H. v. D.W., 

 (D.C. 2013) (citation omitted). Under the District’s

third-party custody statute, 

 to .13, a non-parent may be

awarded custody only when the parents consent to it or this statutory presumption is

rebutted by clear and convincing evidence showing that (1) “the parents have

abandoned the child,” (2) “custody with a parent is or would be detrimental to the

physical or emotional well-being of the child,” or (3) other “exceptional

circumstances . . . support rebuttal of the presumption favoring parental custody.”

 § 16-831.07(a). If the statutory presumption is rebutted through one of those

showings, then a court may award some degree of custody to non-parents only to the
                                            11

extent it finds that it “is in the child’s best interests.” Id. § 16-831.06(a)(2); see also

id. § 16-831.04(a) (explaining that the ordered custody may include joint custody

between parents and non-parents or any “other custody arrangement the court

determines is in the best interests of the child”).



       Jl.B. challenges the trial court’s ruling at both steps of its analysis. That is,

she first argues that the statutory presumption favoring parental custody was not in

fact rebutted, both because the evidence did not suffice to rebut it and because the

trial court committed legal error when it used the fact that she was abused against

her, contrary to a statutory prohibition against doing just that. See 

(c). She next argues that, even if the parental presumption had been

rebutted, the trial court abused its discretion in stripping her of virtually all of her

custody rights. In evaluating these arguments, we generally will reverse a trial

court’s custody order only if we determine that it abused its discretion, Macklin v.

Johnson, 

, 1279 (D.C. 2022), though Jl.B.’s argument that the trial

court violated 

(c) by counting the fact that she had been

abused against her is a claim of legal error, which we review de novo.



       We consider each of Jl.B.’s arguments in turn.
                                          12

                                          A.



      A parent in a custody dispute with a third party is entitled to a presumption

that “custody with the parent is in the child’s best interests.”        

(a). This presumption protects a parent’s “constitutionally-protected right

to care for, have custody of, and manage their children.” W.H., 

. A

third party who seeks some degree of custody “bear[s] the burden of rebutting the

parental presumption by clear and convincing evidence.” 

(b).



      At the outset, we note that the parties all interpret this statutory presumption

as an all-or-nothing inquiry, protecting parents’ right to sole custody, but with no

residual effect once the presumption of sole custody in the parents is rebutted. That

is not the only way to read the statutory presumption, however. It might be

interpreted as having residual force even if a third party can overcome the

presumption of sole custody in the parents, so that it effectively maximizes the

degree of parental custody so long as the parents are able and willing to care for the

child to that degree, that degree of custody is not detrimental to the child’s physical

or emotional well-being, and exceptional circumstances do not counsel against that

degree of parental custody. See 

(a). Under this alternative

view, every incremental intrusion into parents’ custody rights would need to be
                                         13

justified via rebuttal of the parental presumption. No party advances that view,

however, and so we proceed with the parties’ shared understanding that the parental

presumption has no such residual effect. 1



      L.B. argues that the parental presumption of sole custody was rebutted in two

statutorily enumerated ways: (1) that “custody with a parent is or would be

detrimental to the physical or emotional well-being of the child,” and (2) that

“exceptional circumstances . . . support rebuttal of the presumption favoring parental

custody.” 

(a)(2)-(3). The trial court made both of those

determinations in its initial May 2020 order. The trial court reasoned that the

parental presumption had been rebutted based on the fact that L.B. “has been

[Ja.B.’s] primary caretaker for nearly a decade” and “[h]er house has been his

anchor, providing him with safety and stability.” The court found that living with

L.B. has provided Ja.B. with a stable home environment in which he has been able




      1
         Also, the parties agree that the parental presumption applies in this case
despite the fact that L.B. has technically had sole legal custody of Ja.B. since 2011
and the parental presumption usually applies only in initial custody determinations.
See S.M. v. R.M., 

 (D.C. 2014). We likewise will not
second-guess their agreement on that point, particularly in light of the unusual
background in this case and the apparent error underlying that 2011 order.
                                          14

to flourish, and that L.B. was the parental figure most “involved in the school and

known well by school personnel” and who tended to Ja.B.’s medical needs.



      Meanwhile, the court found that Jl.B.’s untreated bipolar disorder had

“interfered with her ability to work with others for [Ja.B.’s] wellbeing.” It noted that

her “interactions with [Ja.B.’s] school have been combative and accusatory” and her

interactions with M.S. and L.B. “are characterized by cursing, threatening, name-

calling, and blaming.” Indeed, Jl.B. described M.S. and L.B. as her “triggers.”

Crucially, the trial court concluded that this “evidence raises concerns about whether

and how [Jl.B.] would keep [M.S.] and [L.B.] involved in [Ja.B.’s] life if she were

his full-time caregiver.” Those concerns were supported by Dr. King’s credited

testimony that Jl.B. seemed inclined to cut L.B. out of Ja.B.’s life. The court

concluded that this evidence constituted exceptional circumstances that supported

rebuttal of the parental presumption, and that it also showed that sole custody with

Jl.B. would be detrimental to Ja.B.’s emotional well-being. See 

(a)(2), (3).



      We discern no abuse of discretion in those conclusions.            The evidence

supports the trial court’s findings that L.B. had parented Ja.B. throughout his life,

that she had done so with great success, and that Jl.B. was not committed to keeping
                                          15

L.B. in Ja.B.’s life. It can fairly be described as exceptional circumstances, as the

statute envisions, where a non-parent has essentially taken on the lead parenting role

for more than a decade. And it is no abuse of discretion to conclude that cutting that

primary and long-term caregiver out of the child’s life would be detrimental to the

child’s physical and emotional well-being. The trial court acted within its discretion

in finding that the parental presumption had been rebutted in its May 2020 order.



      Jl.B. also argues that the trial court erred when, in its January 2021 order, it

further considered the fact that she was abused as a mark against her in finding the

parental presumption had been rebutted. We conclude that any error on that score

was harmless, as the trial court had found the parental presumption rebutted

independent of that abuse and its aftermath in its May 2020 order—reasoning that it

repeated in its January 2021 order—and we have already held that the trial court

acted within its discretion in doing so. Nonetheless, some aspects of the trial court’s

revised order seemed to run afoul of the statutory prohibition that Jl.B. highlights,

and because we have never previously discussed that statutory provision, we pause

to explain why that is so.



      A trial court in the District “shall not use the fact that a parent has been the

victim of an intrafamily offense against [them] in determining whether the
                                          16

presumption favoring parental custody has been rebutted.”               

(c). Jl.B. and amicus curiae, the Domestic Violence Legal Empowerment

and Appeals Project (DV LEAP), make compelling arguments that the court violated

this prohibition when it drastically reduced her custody in seeming response to her

being abused.



      For instance, while the court stated that it did not consider the “intrafamily

offense as the sole basis for concluding that the parental presumption ha[d] been

rebutted” (emphasis added), that statement clearly implies that the court did consider

the fact of Jl.B.’s abuse as one factor among others in reducing her custody. The

guardian ad litem defends the trial court’s ability to do just that and asks us to

“interpret § 16-831.07(c)’s prohibition . . . to mean that a court cannot rely solely on

evidence that the parent is a survivor of domestic violence” (emphasis added). That

is not a sensible reading of the statutory language. The statute’s instruction that a

court “shall not use” the fact that a parent is the victim of an intrafamily offense in

its analysis, by its plain language, prohibits any use of that fact, whether as the sole

factor in the analysis or as one factor among many. To be sure, the trial court might

have given weight to the effects of the incident on Ja.B., or to the fact that Ja.B. was

perhaps in harm’s way and exposed to physical abuse while in Jl.B.’s custody. But

the trial court’s analysis gives us no assurance that it was carefully cabining its
                                          17

consideration in that manner, as opposed to treating Jl.B.’s status as a victim of

domestic abuse against her in the custody calculus.



      Jl.B. and DV LEAP also raise plausible arguments that the trial court drew a

series of impermissible inferences from the sole fact that Jl.B. was abused without

the necessary evidentiary support to ground those inferences. For instance, while it

would certainly be proper for a court to consider past incidents of domestic violence

as predictive evidence that it might recur, the trial court’s conclusory assertion that

there was a “risk of future incidents that imperil [Ja.B.’s] physical or mental

wellbeing” had little support in the record. The trial court made no findings about

whether J.H. continued to live with Jl.B., whether Ja.B. had even been in the same

vicinity as J.H. since the incident, or any number of other questions that would seem

necessary to establish by clear and convincing evidence that Ja.B.’s physical and

emotional well-being would be endangered by the potential for future abuse. See

(a). In short, the trial court’s findings and reasoning were

too cursory to support its conclusion on this point.



      Ultimately, because we have upheld the trial court’s reasoning that the

parental presumption had been rebutted independent of the abuse and its aftermath,

any error in violating the statutory prohibition in § 16-831.07(c) was harmless.
                                          18

                                          B.



      We now address Jl.B.’s argument that the trial court abused its discretion

when, after concluding that the parental presumption had been rebutted, it reasoned

that limiting her custody to twenty-four supervised visits per year was in Ja.B.’s best

interests. In assessing that argument, “we first look to whether the trial court

considered ‘all relevant factors and no improper factor,’ and then we ‘evaluate

whether the decision is supported by substantial reasoning . . . drawn from a firm

factual foundation in the record.’” Macklin, 268 A.3d at 1279 (quoting In re A.M.,

, 1257-58 (D.C. 1991)). The relevant factors that the trial court must

consider when fashioning a custody arrangement are:


             (1) The child’s need for continuity of care and caretakers,
             and for timely integration into a stable and permanent
             home, taking into account the differences in the
             development and the concept of time of children of
             different ages; (2) The physical, mental, and emotional
             health of all individuals involved to the degree that each
             affects the welfare of the child, the decisive consideration
             being the physical, mental, and emotional needs of the
             child; (3) The quality of the interaction and
             interrelationship of the child with his or her parent,
             siblings, relatives, and caretakers, including the third-
             party complainant or movant; and (4) To the extent
             feasible, the child’s opinion of his or her own best interests
             in the matter.
                                           19

(a). There is no suggestion that this list of factors is

exhaustive. Rather, the “relevant factors” in any particular case will depend on the

facts of the specific custody dispute before the court. Cf. Johnson v. Washington,

 (D.C. 2000) (“Child custody cases present complex factual

situations, and we necessarily rely on the trial court’s careful balancing of the various

factors that may impact the child.”). Because the trial court did not consider all

relevant factors, and because its analysis of the factors that it did consider failed to

support its conclusions, the court abused its discretion.



      First, we note that the trial court seemed to give no weight to Ja.B.’s

preference in its January 2021 order. Contra 

(a)(4). The

court, in both its May 2020 and January 2021 orders, found Ja.B. to be a “bright,

articulate, and mature” child who was “well-spoken and seem[ed] wise beyond his

age.” After hearing him testify, the court opined that he had his “head on straight”

and commented about how he was “[s]o thoughtful.” In short, Ja.B. was clearly

capable of expressing an informed view about what was in his best interests. And

the only evidence in the record is that, when the court asked Ja.B. “what [he’d] like

[the court] to do,” Ja.B. responded that he “like[d] the way that things are.” To be

sure, that evidence came prior to the domestic abuse incident, and the trial court

initially granted Ja.B.’s request to keep the arrangement as it had been for years. But
                                         20

when the trial court then drastically altered the custody arrangement, it had no

evidence before it that Ja.B.’s preferences had changed, and it gave absolutely no

explanation for discarding Ja.B.’s preference or failing to make any inquiry into

whether it had changed. Of course, a court is free to disagree with a child as to what

is in the child’s best interests. See P.F. v. N.C., 

, 1117 (D.C. 2008).

But when the child is older and seemingly mature enough to express informed

preferences, a court cannot be said to have meaningfully taken their preferences into

account when it so fundamentally deviates from them without so much as an

explanation.



      In addition to failing to fully consider Ja.B.’s views, the court’s discussion of

the other factors does not support its conclusion. Though the court provided some

support for reducing Jl.B.’s custody—in the form of concerns about Jl.B.’s mental

health and the potential for recurring domestic violence in her house, 2 see 

(a)(2)—its reasoning, taken as a whole, is internally contradictory. This

is perhaps unsurprising, since the majority of the court’s reasoning in its January

2021 order is identical to its May 2020 order despite the two orders’ drastically

different bottom lines. For instance, in both orders, the court repeatedly emphasized


      2
        As we noted above, the court’s analysis of the risk of future domestic
violence occurring and harming Ja.B. is sparse. See supra Part II.A.
                                          21

that Ja.B.’s continuity of care and his loving relationship with Jl.B. supported

“regular, frequent” visitation with her. See 

(a)(1)-(3). This

reasoning supported the court’s conclusion in May 2020 that “it [wa]s in [Ja.B.’s]

best [interests] to maintain the current custodial arrangement,” which included

“substantial parenting time” with Jl.B. But it is at odds with the court’s subsequent

decision to reduce Jl.B.’s visitation to only two supervised visits per month. That is

not “frequent” visitation and certainly does not provide “continuity” in Ja.B.’s

relationship with Jl.B., particularly when all of the visits must be supervised so that

Ja.B. can no longer spend any time alone with his mother.



      Though the court expressed legitimate concerns about the impact of Jl.B.’s

mental health on Ja.B., all of the evidence relating to Jl.B.’s mental health was in the

record prior to May 2020, when the court concluded that Jl.B.’s “mental health . . .

does not support [the conclusion that] [Ja.B.]’s time with his mother be limited

further.” Jl.B.’s mental health thus cannot have formed the basis for the court’s

revised order in January 2021.



      Nor was any of the reasoning that the court added to the January 2021 order

enough to cure the internal contradictions in the rest of the order. The only major

difference in the January 2021 order was the addition of a single paragraph in which
                                          22

the court stated that “unsupervised visitation with [Jl.B.] poses a risk to [Ja.B.]’s

physical and emotional health” because of “concern[s] about ongoing domestic

violence in [Jl.B.’s] home and the potential for physical harm to [Ja.B.]” and

“concern[s] about continuing emotional harm to [Ja.B.] . . . in light of [Jl.B.’s]

decision to lash out at [Ja.B.] for seeking help.” Though these are legitimate

concerns, the court provided no analysis of the likelihood that Ja.B. would be

harmed, emotionally or physically, by domestic violence in the future. Supra Part

II.A. Nor did it consider whether Jl.B’s “lashing out” at her son may have been

mitigated by the fact that she herself had just been the victim of a violent attack. Nor

did the court attempt to square its concerns for Ja.B’s emotional and physical

wellbeing with the three other statutory factors which, by the court’s own judgment

in May 2020, all supported maintaining the status quo. This minor addition to the

court’s order cannot alone sustain its substantial modification of the custody

agreement.



      In addition to erroneously reducing Jl.B.’s physical custody, the court

erroneously increased M.S.’s custody when it granted him joint legal and physical

custody with L.B. This is so for two reasons: the court failed to consider M.S.’s

conviction for simple assault against Jl.B., and its expansion of M.S.’s custody

lacked sufficient supporting reasoning. First, the court failed to consider M.S.’s
                                           23

conviction for simple assault against Jl.B. while she was pregnant with Ja.B. Jl.B.

argues that the court was bound by the statutory requirements governing custody

disputes between parents, including that a court shall not award any custody to a

parent who has committed an intrafamily offense without a written statement

justifying that determination. See 

(a-1). The guardian ad litem

responds that the provisions governing custody disputes between parents do not

apply to third-party custody disputes such as this one.



      We need not resolve that technical dispute because the court was, in any case,

bound to consider M.S.’s intrafamily offense as a “relevant factor[]” under the third-

party custody statute. 

(a). M.S.’s conviction for simple

assault against Jl.B. while she was pregnant with Ja.B. is relevant here because, as a

general principle, “[t]he law of this jurisdiction requires a judicial officer to exercise

considerable caution before granting custody or visitation rights to a parent who has

committed an intrafamily offense.” P.F., 953 A.2d at 1112. Though the court

acknowledged that M.S. had been convicted of assaulting Jl.B., it never mentioned

this fact in its analysis, let alone justified why joint custody with M.S. would be in

Ja.B.’s best interests despite this conviction. That is not to say that the court could

not grant joint custody to M.S.—only that it must explain its reasons for doing so

despite his apparent past abusive conduct.
                                         24

      Second, the trial court’s grant of joint legal custody to M.S. lacked sufficient

supporting reasoning. The court awarded joint legal custody to M.S. for the first

time in January 2021, despite the fact that no new evidence relating to M.S. had been

introduced since the May 2020 order, in which M.S. was not granted legal custody.

If the court wished to give M.S. joint legal custody, it was required, at a minimum,

to explain its reasons for doing so. See Macklin, 268 A.3d at 1279 (custody order

must be “supported by substantial reasoning . . . drawn from a firm factual

foundation in the record”); 

(b) (“An order granting relief

under this chapter shall be in writing and shall recite the findings upon which the

order is based.”).



      Thus, even with the high standard of deference we afford the trial court in

child custody cases, we cannot say that the trial court’s decision to reduce Jl.B.’s

visitation to twenty-four supervised visits a year and to award M.S. joint legal and

physical custody was supported by substantial reasoning. We conclude that the

court’s January 2021 custody order was an abuse of discretion.
                                         25

                                        III.



      For these reasons, while we do not disturb the trial court’s conclusion that the

parental presumption was rebutted, we vacate the court’s January 2021 revised

modified custody order and remand for further proceedings.



                                                                         So ordered.