The District of Columbia has a rich body of case law regarding domestic violence and Civil Protection Orders, with which any practitioner in the Domestic Violence Unit must be thoroughly familiar. The Court issued another such decision on May 5, 2016, in the matter of Edmund Fleet v. Ericka Fleet – an appeal from cross-petitions in the Domestic Violence Unit, one of which was entered and one of which was denied.
The Court of Appeals affirmed the trial court’s decision in a split opinion (the judges voted two to one) deferring to determinations of fact and credibility made by the trial court. It was, in my opinion, a very close case at the trial level, and the split decision on the appeal indicates it was a close decision there, even with the deference given to the trial court’s decision.
The Fleets were parties to a short marriage and had one child in common. During the pendency of the divorce, and against the explicit direction of the family court, Ms. Fleet arrived at Mr. Fleet’s place of employment, with the baby, intending to take Mr. Fleet’s car, which was titled in her name. Ms. Fleet put the baby in the car she intended to take. In my opinion, and likely the opinion of every person who has reviewed or heard this case, Ms. Fleet’s premeditated decision to violate the family court’s direction (not to take the car), with the baby in tow, was terrible.
What ensued was a snowballing of bad decisions. Mr. Fleet, observing the appropriation from his office window, exited the building and got into the car. He screamed, from the car, to a bystander to call the police and videotape the incident. Ms. Fleet, perhaps regretting being caught in the act, told Mr. Fleet she would take the child and leave, but Mr. Fleet refused to let Ms. Fleet take the child back out of the car. Ms. Fleet called the police. The standoff lasted five to ten minutes.
When the police arrived, they determined that Ms. Fleet could take the car, which was titled in her name. Mr. Fleet got out of the car, and took the baby out of the car and into his office building. The police reviewed the custody order, determined it was Ms. Fleet’s time with the child, and retrieved the baby from Mr. Fleet promptly and without incident. Ms. Fleet left with the baby, but not the car. Mr. Fleet claimed he took the baby into his office building because Ms. Fleet was out of control, and he believed the baby was in an unsafe environment with Ms. Fleet.
The parties filed cross petitions for civil protection orders. The Domestic Violence Unit of DC Superior Court granted Ms. Fleet’s petition, finding that Mr. Fleet had committed parental kidnapping (an intrafamily offense as defined by D.C. Code § 16-1001) by taking the child into his office building. The court denied Mr. Fleet’s petition finding that Ms. Fleet did not commit or threaten to commit theft of a car (the claimed intrafamily offense) because she was the legal owner of the car.
In finding that Mr. Fleet had committed parental kidnapping, the court needed to find that Mr. Fleet intended to interfere with Ms. Fleet’s right to exercise custody of the baby. Mr. Fleet argued to the trial court and on appeal that his intent in taking the baby into his office building was to protect the baby from a dangerous situation, specifically her mother’s erratic behavior. Indeed, the Court of Appeals found, “the trial court appeared to assume that Mr. Fleet may have been motivated at least in part by a desire to protect the child, but held that Mr. Fleet also intended to interfere with Ms. Fleet’s right to remain in physical control of the child.” Slip Op. at 10. The trial court found, and the Court of Appeals affirmed, that this dual intent was sufficient to support the finding that Mr. Fleet committed parental kidnapping.
The Fleet decision highlights the adage that the best way to win an appeal is to win a trial. The trial court here easily could have found that Mr. Fleet moved the baby only to protect her, a defense to the intrafamily offense finding. If the trial court had made that finding, and not entered a Civil Protection Order, I believe the Court of Appeals would have affirmed that decision, just like it affirmed this decision. The Court of Appeals gives expansive deference to the trial court’s determinations of credibility, weighing of evidence, and reasonable inferences. Unless a trial judge is plainly wrong or makes a decision without evidence to support it, an appellate court will not revisit these findings on appeal. With regard to the determination that Mr. Fleet was at least in part motivated by an intent to interfere with Ms. Fleet’s right to retain physical custody of the child, the Court of Appeals deferred to the trial court. Of note, the main difference in opinion between the majority and the dissent is whether the trial court had any basis for finding that Mr. Fleet did intend to interfere with Ms. Fleet’s physical custody.
A pervasive misunderstanding of domestic violence laws is that physical violence is necessary for a court to find an “intrafamily offense” has occurred. This is absolutely not the case, as evidenced by this decision. The Court of Appeals previously affirmed a civil protection order on the finding of the intrafamily offense of illegally accessing the other party’s email account, which involved no violence. See J.J. v. B.A., 66 A.3d 721 (D.C. 2013). What is necessary is an intrafamily offense, as defined by D.C. Code § 16-1001.
Two bonus takeaways:
Mr. Fleet argued on appeal that the trial court could not properly grant a CPO against him without finding that Ms. Fleet or the child was afraid of him. This is a common misconception I see both from petitioners and respondents in the Domestic Violence Unit – petitioners feeling the need to show they are afraid, and respondents feeling the need to show the petitioner is not afraid. The Court of Appeals rejected this argument without ambiguity writing, “We have never held or even suggested that proof of subjective fear by the CPO petitioner or anyone else is a prerequisite to issuance of a CPO.” Slip op. page 14.
The court also reiterated its long-standing holding that the conduct of an alleged victim of an intrafamily offense does not justify or excuse the intrafamily offense. See Murphy v. Okeke, 951 A.2d 783 (D.C. 2008).
Two super-bonus takeaways:
This case does not present, based on this limited ruling, as an abusive relationship (though there are some references to past allegations that may include threats or violence, or other abusive, controlling behavior). It presents as to two people, both acting badly, one of whose behavior happened to be a crime and the other of whose behavior happened not to be a crime, simply because her name was on the title of the vehicle. That’s the rub. But irrespective of the legal issues involved in this case, and the Civil Protection Order now entered, both parties had ample opportunities to defuse the situation.
Ms. Fleet should not have tried to take the car. She should have let the issue be decided in the domestic relations branch. And if she was going to make a bad decision on her own part, she should not have brought the baby. That was reckless and worrisome.
Mr. Fleet should not have left his office. He saw what was happening with the car. He could have filed the appropriate pleadings in the domestic relations branch to get the car back, and no doubt, the domestic relationship judge would have been unimpressed by Ms. Fleet’s actions. Mr. Fleet should not have taken it into his own hands to stop Ms. Fleet from taking the car.
Mr. Fleet should not have gotten into the car. Again, the solution here was not to use his body, his physical presence, to get what he wanted. If Ms. Fleet made the poor decision to use physical force, contrary to the court’s directive, to take the car, Mr. Fleet should have observed it, and reported it to the court for resolution.
Mr. Fleet should have let Ms. Fleet take the baby. At the point Ms. Fleet asked for the baby so she could leave without the car, police were on the scene and could have judged whether Ms. Fleet was competent to maintain custody of the child. That being said, when police did intervene, Mr. Fleet provided the baby, which was the correct decision.
Too often we focus on excuses for our actions (they did X, so I did Y) instead of looking at the opportunities we have to stand down, to be the bigger person, and to defuse the situation, even if it means the other person “wins” in the short term.
And the final takeaway from this case, and so many other domestic cases: keep kids out of parents’ drama. There is no reason this baby had to be subjected to her parents’ public screaming match. There is no reason the baby had to be a physical pawn, put in the car her mother wanted to take, and held in the car by her father who did not want the car taken. This was a dispute about a car that ended in the carrying away of a baby. There is no excuse for parents exposing their children to fighting between the parents, and no excuse for the children being used as tools in that conflict.
The full opinion is available here