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volumes go to press. 

DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 16-FM-257 & 16-FM-310 

A.C., APPELLANT/CROSS-APPELLEE, 

V.

N.W., APPELLEE/CROSS-APPELLANT. 

Appeals from the Superior Court

of the District of Columbia

(DRB-1589-10) 

(Hon. Robert R. Rigsby, Motion Judge)

(Hon. Robert Okun, Motion Judge)

(Argued April 6, 2017 Decided June 1, 2017) 

Leah Quaile, Neighborhood Legal Services Program, with whom Keeshea 

Turner Roberts, Neighborhood Legal Services Program, was on the brief, for 

appellant/cross-appellee.

Alan B. Soschin for appellee/cross-appellant. 

Before BECKWITH and EASTERLY, Associate Judges, and STEADMAN, Senior 

Judge.

BECKWITH, Associate Judge: Appellant A.C., the mother of minor child 

A.C.W., sought and obtained a temporary order suspending custody and barring all 

visitation by appellee N.W., the child‘s father, pending a police investigation into 
2

an allegation that N.W. had sexually abused the child. When the investigation 

ended without prosecution, N.W. filed a motion to vacate the temporary custody 

order, and after a four-day evidentiary hearing, the trial court granted it, with the

important proviso that all visits between N.W. and A.C.W. would be supervised. 

A.C. now appeals the trial court‘s vacatur of the temporary custody order, claiming 

that the trial court erred in placing the burden of proof on her rather than on N.W., 

arbitrarily disregarded expert testimony presented at the hearing, and failed to 

make sufficient findings. Although we reject the first two claims, we agree that the 

trial court‘s findings of fact were insufficient. Because, however, the evidence 

presented would have justified the trial court‘s ultimate conclusion that the 

temporary order should be vacated, we do not reverse but instead remand the 

record so that the court can clarify the factual basis for its determination.

I.

Appellant A.C. and appellee N.W. are the mother and father, respectively, of

A.C.W., a girl born in February 2010, shortly after A.C. and N.W. divorced. A.C. 

and N.W. resolved, through a consent order entered in January 2012, that they 

would share legal and physical custody. Pursuant to the consent order, A.C.W. 

resided with A.C., and N.W. had visitation every other weekend and at certain 

other specified times. 
3

A. Temporary Custody Order

In March 2015, A.C. filed a pro se emergency motion stating that N.W. was 

―under investigation for child abuse‖ and requesting that N.W.‘s ―[v]isitation [with 

A.C.W.] be suspended until the investigation of child abuse is concluded.‖ In an 

ex parte hearing before Associate Judge Robert Rigsby, A.C. testified that A.C.W. 

was ―suffering sexual abuse by‖ N.W. and that A.C.W. had ―show[n] and 

verbalized . . . what was happening.‖ A.C. testified that there was a ―detective in 

Virginia‖ investigating N.W. and that the detective had recommended filing an 

emergency motion to suspend visitation ―for [A.C.W.‘s] safety until [the police] 

conclude‖ the investigation. Judge Rigsby granted A.C.‘s motion, reasoning that 

in light of A.C.‘s ―allegations of sexual abuse under sworn testimony,‖ it was ―in 

the best interest for temporary sole legal and physical custody to be awarded to 

mom with no visitation to dad.‖ Judge Rigsby stressed that the order was 

―temporary‖ and scheduled a status hearing for the following month. 

B. Motion To Vacate

N.W. filed a motion to vacate the temporary custody order in June 2015, 

after the police investigation closed without prosecution. Judge Rigsby presided 

over a four-day hearing, in which both parties offered testimony and other 
4

evidence.1 

N.W. called a single witness in support of his motion to vacate, Detective 

Michael Hengemuhle of the Fairfax County Police Department (FCPD). Detective

Hengemuhle had supervised the FCPD‘s investigation into N.W.‘s alleged sexual 

abuse of A.C.W. He testified that after conducting ―a medical examination of the 

minor child and DNA testing, as well as interviews with [A.C.], [A.C.‘s] family, 

[N.W.], and [N.W.‘s] family,‖ the FCPD had informed N.W. ―that no criminal 

charges would be filed.‖ 

In her case in opposition to N.W.‘s motion, A.C. called Jessica Lopez, 

A.C.W.‘s therapist at Safe Shores, the District‘s Children‘s Advocacy Center,2to 

testify as an expert in ―clinical mental health.‖

3

 A.C. represented that she was not 

proffering Ms. Lopez as an expert in ―child sexual abuse.‖ Ms. Lopez testified 

about the ―typical trauma responses‖ that she believed A.C.W. had exhibited and 

explained the ―trauma-focused cognitive behavioral therapy‖ that she had been 

 

1

 The hearings were held on June 30, September 15, September 18, and 

November 25, 2015. The lengthy intermissions appear to be the result of 

scheduling difficulties on the part of the trial court and counsel. 

2

 See D.C. Code § 4-1301.02 (2B) (2012 Repl.).

3

 N.W. did not contest Ms. Lopez‘s qualification to testify in this capacity.
5

using to treat A.C.W. She also testified about statements that A.C.W. had 

allegedly made, including A.C.W.‘s early statements that N.W. ―kisse[d] [her] on 

the lips and [that she] d[id]n‘t like that‖ and that N.W. is a ―dragon with fire‖ who 

had ―hurt‖ her, and her later statement (after several months of weekly therapy) 

that N.W. had ―put his snake in [her] pilu-pilu and [that she had] felt dirty.‖4 Ms. 

Lopez opposed any resumption in visitation between N.W. and A.C.W. because 

she thought it would be ―very detrimental to [A.C.W.‘s] therapy and her progress.‖ 

A.C. also testified.

5

 She testified that A.C.W. had first indicated that she had 

been sexually abused on March 2, 2015, a day after A.C.W.‘s final visit with N.W. 

A.C. stated that A.C.W. indicated that N.W. had ―kissed her on her private part.‖

6

 

A.C. took A.C.W. to her pediatrician a week later, but it was not until a couple of 

 

4

 Ms. Lopez testified that A.C.W. used the word ―snake‖ to mean ―penis‖ 

and used the word ―pilu-pilu‖ to mean ―vagina.‖ 

5

 A.C. also called Gail Aycox, Program Coordinator for the District‘s 

Supervised Visitation Center (SVC). Ms. Aycox testified that before the sexualabuse allegations arose, A.C. and N.W. had used the SVC to exchange A.C.W. 

from one parent to the other on sixty occasions and that A.C.W. was reluctant to 

leave A.C. and go with N.W. on twenty-two of those occasions, extending back to 

June 2012. 

6

 A.C.‘s testimony that A.C.W. had disclosed abuse by N.W. was admitted 

not for the truth of the matter disclosed but for the disclosure‘s effect on the 

listener (here, A.C.). 
6

weeks after that that A.C.W. had a full sexual-abuse examination.7 A.C. testified 

that although she had given A.C.W. baths on the nights after A.C.W.‘s final visits 

with N.W., she had not noticed any bruising, bleeding, or other injuries. A.C. 

testified that she believed that the therapy with Ms. Lopez had helped A.C.W. but 

that A.C.W. was ―still racked with fear‖ and was exhibiting ―advanced sexual 

behavior.‖ 

N.W. testified in rebuttal. He denied that he had ever abused A.C.W. N.W. 

testified that he had had only four overnight visits with A.C.W. in her entire life

and that because he lived in New York City and did not have a local residence, he 

would typically spend his weekend visits with A.C.W. at his sisters‘ home in 

Virginia or at museums. N.W. also testified that shortly after A.C.W. was born, 

A.C. told him that she wanted sole custody and that if he ―sought joint custody[,] 

. . . she was going to accuse [him] of abuse.‖ N.W. asserted that A.C. had in the 

past made false allegations that he had abused her and A.C.W. and that they had 

 

7

 A.C.W.‘s medical records were never entered in evidence, and N.W.‘s 

counsel asked the trial court to infer that there was no evidence in the medical 

records to support the allegation of sexual abuse. See Standardized Civil Jury 

Instructions for the District of Columbia, No. 2-17 (2015 rev. ed.) (―If a party to 

this case failed to produce relevant evidence which was . . . particularly . . . 

available to that party, and that party did not sufficiently explain why it was not 

produced, then you may infer that the evidence would have been unfavorable to 

that party.‖ (brackets omitted)). 
7

been determined by the relevant authorities to be unfounded. 

C. Judge Rigsby’s Order Granting the Motion To Vacate

Several months after the end of the hearing, Judge Rigsby issued an order 

granting N.W.‘s motion to vacate—the order at issue in this appeal. He

summarized much of the hearing evidence but did not make any findings as to 

whether the abuse occurred or whether A.C.W. would be harmed by resumption in 

visitation. The judge then set forth the relevant legal principles, including, 

significantly, that in the absence of a finding by a preponderance of the evidence 

that a parent has committed an intrafamily offense, there is a presumption that joint 

custody is in the best interest of the child, and that a parent seeking a modification 

of a custody award is required to prove a substantial and material change in 

circumstances. See D.C. Code § 16-914 (a)(2), (f)(1) (2012 Repl.).

8

 In light of 

these principles, Judge Rigsby ―f[ound] that [A.C.] ha[d] not met her burden.‖ He

therefore vacated the temporary custody order but required that future visitation 

between N.W. and A.C.W. should be supervised.9 Associate Judge Robert Okun, 

 

8

 All subsequent D.C. Code citations are to the 2012 Replacement, unless 

otherwise noted.

9

 N.W. had proposed that visitation be supervised, even though the 2012 

custody arrangement permitted unsupervised visits. N.W. had indicated that this 

(continued...)
8

who took over the case when Judge Rigsby rotated out of the Domestic Relations 

Branch, stayed Judge Rigsby‘s order vacating the temporary custody order, 

pending this appeal.

II.

We review the trial court‘s order vacating the temporary custody order under 

the same ―manifest abuse of discretion‖ standard under which we review a custody 

decision. Khawam v. Wolfe, 84 A.3d 558, 570 (D.C. 2014). To determine whether 

the trial court abused its discretion, we assess ―whether the trial court considered 

all relevant factors and no improper factor and . . . evaluate whether the decision is 

supported by substantial reasoning drawn from a firm factual foundation in the 

record.‖ Estopina v. O’Brian, 68 A.3d 790, 793 (D.C. 2013) (quoting In re A.M., 

589 A.2d 1252, 1257–58 (D.C. 1991)) (alterations and internal quotation marks 

omitted). We review the trial court‘s legal determinations de novo and its findings 

of facts for clear error. Jordan v. Jordan, 14 A.3d 1136, 1146 (D.C. 2011). 

A.C. asserts three claims of error. First, A.C. claims that the trial court

misallocated the burden of proof and failed to apply the rebuttable presumption 

 

(...continued)

was necessary as part of a ―plan for the reintroduction of the [m]inor [c]hild and 

the [father],‖ given that they had not seen each other in a number of months. 
9

that it is against the best interest of the child for a perpetrator of an intrafamily 

offense to have custody. Second, A.C. claims that the trial court arbitrarily 

disregarded Ms. Lopez‘s expert testimony. Third, A.C. claims that the trial court 

made insufficient findings of fact to support its order vacating the temporary 

custody order.10 We address these claims in turn.

A. Burden of Proof

A.C. contends that the trial court erroneously failed to recognize that ―[a]s 

the party seeking to change the existing temporary custody order, it was [N.W.‘s] 

burden to prove by a preponderance of the evidence that there had been a 

substantial and material change in circumstances and that a change was in the best 

interests of the child.‖ She further contends that N.W. ―incurred an additional 

burden of proof when [A.C.] presented evidence that [N.W.] had committed an 

intrafamily offense‖ and that the trial court erroneously failed to require N.W. to 

 

10

 A.C. describes her three arguments somewhat differently and in a 

different order: (1) ―[t]he trial court abused its discretion when it failed to address 

the requisite factors in determining the best interests of the child‖; (2) ―[t]he trial 

court committed an error of law when it placed the burden of proof on appellant 

[A.C.] rather than appellee [N.W.]‖; and (3) ―[t]he trial court improperly 

disregarded appellant [A.C.‘s] uncontradicted expert and lay testimony regarding 

the child‘s therapy and mental health when it awarded appellee [N.W.] custody and 

visitation of the minor child.‖ 
10

meet this burden. Both contentions are without merit.

D.C. Code § 16-914 (f) provides that a party seeking to modify an ―award of 

custody‖ must prove by a preponderance of the evidence that ―there has been a 

substantial and material change in circumstances and that the modification . . . is in 

the best interest of the child.‖ A.C.‘s assertion that this provision placed the 

burden of proof on N.W. is incorrect because the temporary custody order was not 

an ―award of custody‖ and N.W.‘s motion to vacate it was thus not a motion to 

modify an award of custody. The temporary custody order was not an award of 

custody as it merely suspended, temporarily, the preexisting 2012 custody award. 

A.C. was explicit when she filed her ex parte emergency motion for the temporary 

custody order that she only sought an order that would last for the duration of the 

investigation into the sexual-abuse allegation, and the trial court was likewise very 

clear in granting the emergency motion that the order would only have temporary 

effect. That the temporary custody order was not an award of custody is confirmed 

by the fact that in issuing it, the trial court did not follow the requirements of § 16-

914 (f) required for issuing a revised custody award.

11

 The court did not find—and 

 

11

 This does not mean that the trial court was without authority to issue the 

temporary custody order. Cf. Ysla v. Lopez, 684 A.2d 775, 780 (D.C. 1996)

(holding that despite the lack of a statutory mandate, the trial court has the 

―inherent authority‖ to award joint custody to unmarried parents). The trial court 

(continued...)
11

could not have found—that A.C.‘s ex parte representations proved by a 

preponderance of the evidence that there had been a substantial and material 

change of circumstances and that modification was in A.C.W.‘s best interest.

12

A.C. is also mistaken when she asserts that ―evidence that [N.W.] had 

committed an intrafamily offense‖ was sufficient to trigger a rebuttable 

presumption that N.W. should not have custody of A.C.W. The relevant statute 

states that ―[t]here shall be a rebuttable presumption that joint custody is not in the

best interest of the child . . . if a judicial officer finds by a preponderance of the 

evidence that an intrafamily offense . . . has occurred.‖ D.C. Code § 16-914 (a)(2)

(emphasis added); see also id. § 16-914 (a-1) (―The party found to have committed 

 

(...continued)

recognized that N.W. would pose a danger to A.C.W. if the allegations of sexual 

abuse were true but also recognized the limited information available in the ex 

parte proceeding, and thus fashioned a sensible short-term remedy.

12

 Although it may be possible that a party could obtain a custody 

modification without satisfying the requirements of D.C. Code § 16-914 (f) and 

that the other party could waive or forfeit his or her right to challenge it, that is not 

what happened here. At the first status hearing after the court granted the 

emergency protective order, counsel for N.W. represented that he ―d[id]n‘t think 

[the court] had any reasonable alternative other than to enter the [o]rder that [it] 

did‖ and that the ―the investigation [into the sexual-abuse allegations] need[ed] to 

. . . run its course‖ before any action on the temporary custody order should be 

taken. Counsel for A.C. agreed. N.W. did not concede that the temporary custody 

order was a permanent custody order, and the clear implication of both parties‘ 

statements was that it was not.
12

an intrafamily offense has the burden of proving that visitation will not endanger 

the child or significantly impair the child‘s emotional development.‖); P.F. v. N.C., 

953 A.2d 1107, 1114–15 (D.C. 2008). Here, there was never a judicial finding by 

a preponderance of the evidence that N.W. committed an intrafamily offense. The 

trial court‘s statement at the ex parte emergency hearing that it was ―bas[ing]‖ its

grant of a temporary custody order on the ―allegations of sexual abuse‖ did not 

constitute such a finding, nor did A.C.‘s mere introduction of evidence of sexual 

abuse at the hearing on the motion to vacate.

Accordingly, N.W. did not bear the burden of proving that the temporary 

custody order should be vacated. Rather, given that the basis for the temporary 

custody order—the criminal investigation—had ended, A.C. bore the burden of 

proving that the temporary custody order should be continued for some other 

purpose. Essentially, she was seeking to convert the temporary custody order into 

a permanent one, thus modifying the preexisting 2012 custody arrangement. 

Therefore, A.C. was required to prove a substantial and material change in 

circumstances and to demonstrate that her proposed custody arrangement would be 

in the best interest of A.C.W. D.C. Code § 16-914 (f). And absent a finding by the 

trial court that N.W. committed an intrafamily offense, A.C. was required to rebut 

the presumption against joint custody. Id. § 16-914 (a)(2).
13

B. Expert Testimony

A.C. next argues that the trial court was required to credit the testimony of 

A.C.W.‘s therapist, Ms. Lopez, because N.W. did not call his own expert to rebut 

her and because her testimony was ―uncontradicted.‖ A.C. contends that ―the only 

conclusion that can be drawn from [Ms. Lopez‘s testimony] is that visitation [with 

N.W.] would be traumatizing to the child and contrary to the child‘s interests,‖ and

she contends that the trial court, in vacating the temporary custody order, 

erroneously ―departed‖ from this conclusion. 

We reject A.C.‘s argument because it is well established that it is ―the 

prerogative of the trial court,‖ not this court‘s, ―to determine credibility and weigh 

the evidence.‖ In re M.L., 28 A.3d 520, 530 (D.C. 2011). While ―[t]he trial court 

may not arbitrarily disregard, disbelieve or reject an expert‘s uncontradicted 

testimony,‖ this court ―will not pit [its] judgment against that of the finder of fact 

who saw and heard the witness testify‖ so long as ―there is some basis in the record 

for the judge‘s refusal to accept an expert‘s conclusion.‖ Prost v. Greene, 652 

A.2d 621, 629 (D.C. 1995) (quoting Rock Creek Plaza-Woodner Ltd. P’ship v. 

District of Columbia, 466 A.2d 857, 859 (D.C. 1983), and Richbow v. District of 

Columbia, 600 A.2d 1063, 1066–67 (D.C. 1991)) (internal quotation marks and

brackets omitted); see also Khawam, 84 A.3d at 570 (―Our review of a trial court‘s 
14

consideration of expert testimony is . . . deferential.‖). The record before us shows 

that there was an adequate factual basis for the trial court to give little weight to 

Ms. Lopez‘s testimony.13 

First of all, there was other evidence in the record that arguably contradicted 

Ms. Lopez‘s testimony that A.C.W. was exhibiting typical symptoms of trauma—

or that, even if it did not contradict Ms. Lopez‘s testimony that A.C.W. was 

exhibiting these symptoms, could at least have supported an inference that the 

symptoms were not the result of N.W.‘s conduct and thus justified the court in 

disregarding Ms. Lopez‘s no-visitation recommendation. Most significantly, N.W. 

testified that he did not abuse A.C.W. and suggested, through his testimony, that 

A.C.W.‘s allegations were the product of a scheme by A.C. to deprive him of 

custody and visitation.

There are also grounds intrinsic to Ms. Lopez‘s testimony that would have 

justified the trial court in giving it little weight. A.C. expressly disclaimed that she 

was offering Ms. Lopez as an expert in ―child sexual abuse,‖ and represented that 

she was offering Ms. Lopez as an expert in ―clinical mental health.‖ Accordingly, 

 

13

 As explained in the following section, however, the trial court‘s failure to 

make sufficient findings—including findings on the weight given to Ms. Lopez‘s 

testimony—was error and requires a remand.
15

Ms. Lopez‘s testimony was admitted for the purpose of explaining A.C.W.‘s thencurrent mental health and the effect that further visitation with N.W. would have 

on her health and treatment progress; Ms. Lopez did not give an opinion on 

whether A.C.W. had actually been abused by N.W., and her testimony would not 

have been admissible for this purpose. See Oliver v. United States, 711 A.2d 70, 

73 (D.C. 1998) (―[C]ourts generally do not permit experts to make direct 

credibility determinations in child sexual abuse matters, or to testify that a child 

has been sexually abused.‖).

Moreover, the trial court could appropriately have inferred from the fact that 

Ms. Lopez was A.C.W.‘s therapist, not a forensic investigator, that her primary 

goal in her interactions with A.C.W. was not to develop an accurate factual 

account of what did or did not happen to the child, but to treat her purported 

symptoms of trauma. Parts of Ms. Lopez‘s testimony could have supported an 

inference that she uncritically accepted A.C.‘s description of N.W.‘s alleged 

abusive behavior towards her and A.C.W. For example, when N.W.‘s counsel 

asked Ms. Lopez on cross-examination why she had never spoken to N.W., she 

explained that ―[a]t [Safe Shores] we speak to the—in this case mom because the 

abuser is the father and so we do not speak to the abuser,‖ and when pressed on 

how she knew that N.W. was ―the abuser,‖ Ms. Lopez admitted that the 
16

information came from A.C. during intake. The trial court could properly have 

found that Ms. Lopez‘s apparent prejudgment of key facts undermined the 

reliability of her recommendation that N.W. should not have visitation with 

A.C.W. Cf. District of Columbia v. Wilson, 721 A.2d 591, 600 (D.C. 1998)

(explaining that an expert‘s ―assumptions . . . as well as the conclusions drawn 

therefrom, are subject to rigorous cross-examination,‖ which provides a basis for 

the finder of fact to ―assess the reliability of the expert testimony‖ (quoting In re 

Melton, 597 A.2d 892, 903 (D.C. 1991))); see also 2 David L. Faigman et al., 

Modern Scientific Evidence: The Law and Science of Expert Testimony § 16:21 

(2016-2017 ed.) (summarizing research on ―how an interviewer‘s favored 

hypothesis can [adversely] influence the accuracy of young children‘s reports‖ to 

the interviewer).

14

 

14

 Other parts of Ms. Lopez‘s testimony could have supported an inference 

that her treatment regimen created the possibility of suggestion and that A.C.W.‘s 

reports of sexual abuse to Ms. Lopez—and the conclusions that Ms. Lopez drew 

from those reports—were thus unreliable. See Kennedy v. Louisiana, 554 U.S. 

407, 443 (2008) (noting that ―children are highly susceptible to suggestive 

questioning techniques like repetition, guided imagery, and selective 

reinforcement‖); In re Jam.J., 825 A.2d 902, 915 n.7 (D.C. 2003). Ms. Lopez saw 

A.C.W. in weekly cognitive-behavioral-therapy sessions in which she would 

engage A.C.W. in various ―play-modologies,‖ like drawing, completing 

worksheets, reading books, and playing with dolls. Recent studies have suggested 

that repeated therapy sessions involving play and imagery may lead a child to 

construct false memories. See Faigman et al., supra, §§ 16:18, 16:25. Notably, it 

(continued...)
17

It is unnecessary to discuss here any further grounds for the trial court to 

have disregarded Ms. Lopez‘s testimony. The point is that there is ―some basis‖ in 

the record for the trial court to have given little weight to Ms. Lopez‘s testimony.

A.C.‘s argument that the trial court was required to credit Ms. Lopez‘s testimony 

in its entirety is therefore without merit.

C. Trial Court’s Findings

A.C.‘s final claim is that ―[t]he trial court abused its discretion when it 

improperly modified the parties‘ custody and visitation of the minor child without 

addressing the requisite  ̳best interest of the child‘ factors.‖ According to A.C., the 

trial court was required to expressly address all seventeen of the best-interest-ofthe-child factors set forth in D.C. Code § 16-914 (a)(3) and to address in detail the 

―critical‖ factor whether N.W. committed an intrafamily offense. The trial court 

did not make explicit findings on the § 16-914 (a)(3) factors or make a finding as 

to whether N.W. abused A.C.W.

N.W.‘s motion to vacate plainly ―raised [the custody of A.C.W.] as an 

 

(...continued)

was only after several months of therapy sessions that A.C.W. allegedly told Ms. 

Lopez that N.W. had ―put his snake in [her] pilu-pilu‖ (an allegation not supported 

by any medical evidence in the record). 
18

issue,‖ and thus ―the best interest of the child‖ should have been the trial court‘s 

―primary consideration.‖ D.C. Code § 16-914 (a)(1)(A). It does not follow, 

however, that the trial court was required to set forth in the record explicit findings 

on A.C.W.‘s best interests—let alone on each and every best-interest-of-the-child 

factor in § 16-914 (a)(3). In the past this court has held that in making a custody 

award, the trial court is required to make express findings on each of the relevant § 

§ 16-914 (a)(3) factors. Dumas v. Woods, 914 A.2d 676, 679 (D.C. 2007); see also

P.F., 953 A.2d at 1112–13. But here, the trial court did not issue a custody award. 

It vacated the temporary custody order that had suspended the custody award 

previously in place. 

Further, the language of D.C. Code § 16-914 (a)(3) only requires a court to 

consider the best-interest-of-the-child factors when ―determin[ing] the best interest 

of the child.‖ But the procedural posture below makes it clear that the trial court 

was not required to make such a ―determin[ation].‖ Before the trial court were

N.W.‘s motion to vacate the temporary custody order and A.C.‘s opposition to the 

motion. The court was thus required to determine whether the circumstances 

justifying the temporary custody order still existed (that is, whether the criminal 

investigation into the alleged abuse was still pending), and if not, whether A.C. had 

demonstrated that the temporary custody order should nonetheless continue as a 
19

permanent custody order. See supra Part II.A. The best interest of A.C.W. had no 

bearing on the first of these inquiries. The best interest of A.C.W. did have bearing 

on the second inquiry, but because A.C. bore the burden of showing ―a substantial 

and material change in circumstance‖ and that the new award would be ―in the best 

interest of the child,‖ D.C. Code § 16-914 (f), the trial court could properly have 

resolved this issue by finding no substantial and material change, rendering it 

unnecessary to make express findings on the best interest of the child.15

Notwithstanding that the trial court was not required to set forth express 

reasoning on the best-interest-of-the-child factors, the trial court was required to 

make findings of fact and explicate its reasoning in sufficient detail to permit 

―meaningful appellate review.‖ Dumas, 914 A.2d at 679; see also Super. Ct. Dom. 

Rel. R. 52 (a) (requiring a decision on a motion to modify a previous court order to 

include findings of fact); Pimble v. Pimble, 521 A.2d 1173, 1175 (D.C. 1987). 

Here, the trial court‘s findings of fact comprised only a summary of the hearing 

evidence. The court did not explain which evidence it gave weight to, nor did the 

court explain how any of the evidence supported its ultimate conclusion that A.C. 

 

15

 Had the trial court found a substantial and material change in 

circumstances, the trial court would have been required to make an express 

determination as to A.C.W.‘s best interests. See Dumas, 914 A.2d at 679; P.F., 

953 A.2d at 1112–13.
20

―ha[d] not met her burden.‖ The court did not justify its apparent conclusion that 

A.C. had failed to show a substantial and material change in circumstances or had 

failed to show that converting the temporary custody order into a permanent award 

was in A.C.W.‘s best interests. Critically, the trial court did not make an express 

finding on the issue whether A.C.W. had been abused by N.W. (an issue bearing 

on the question whether the presumption against joint custody applied), and it 

likewise did not make an express finding on the issue whether A.C.W. would be 

traumatized, as Ms. Lopez said she would be, if she resumed visitation with N.W.

(a consideration bearing on both the substantial-and-material-change-incircumstances and best-interest-of-the-child inquiries).16

 See P.F., 953 A.2d at 

 

16

 A.C. points out one other factor that she believes the trial court was 

required to explicitly address in detail: ―the wishes of the child as to . . . her 

custodian.‖ D.C. Code § 16-914 (a)(3)(A); see P.F., 953 A.2d at 1117–18. 

Although A.C.W. did not testify, A.C. notes that Ms. Lopez testified that A.C.W. 

told her she ―d[id]n‘t want to see‖ N.W. and that he was ―dead to [her].‖ N.W. 

argues (in one sentence) that the testimony was inadmissible hearsay, but he does 

not address the medical-diagnosis hearsay exception. See Galindo v. United 

States, 630 A.2d 202, 210 (D.C. 1993) (―Under the medical diagnosis exception to 

the hearsay rule, statements made by a patient for purposes of obtaining medical 

treatment are admissible for their truth . . . .‖). We therefore decline to consider 

N.W.‘s hearsay argument. See CHH Capital Hotel Partners, LP v. District of 

Columbia, 152 A.3d 591, 596 n.11 (D.C. 2017) (―Issues adverted to in a 

perfunctory manner, unaccompanied by some effort at developed argumentation, 

are deemed waived.‖ (quoting McFarland v. George Washington Univ., 935 A.2d 

337, 351 (D.C. 2007))). Nonetheless, contrary to A.C.‘s argument, the trial court 

was not required to attach great weight to this hearsay testimony—the trial court 

(continued...)
21

1113 (―Where the issue is a critical one, trial judges must explicate their reasoning 

in considerable detail.‖); cf. Khawam, 84 A.3d at 573 (reversing the trial court‘s 

denial of a motion to modify a custody award without a hearing where the court 

had failed to address ―the serious allegations raised by [the] motion‖). 

Accordingly, the trial court‘s findings were insufficient to allow meaningful review 

and a remand is required.17

III.

Appellee N.W. filed a cross-appeal in which he raises several issues, many 

of which we addressed (at least implicitly) in the discussion above. We turn now 

to N.W.‘s remaining claim that Ms. Lopez‘s testimony was barred by D.C. Code

§ 4-1301.52 (a), a statute which provides for the confidentiality of certain 

information and records in the custody of Safe Shores. N.W. relies primarily on 

 

(...continued)

could properly have been skeptical that a few comments uttered during a therapy 

session by a five-year-old child whose first language was not English constituted a 

considered expression of the child‘s wishes on custody or visitation. See also 

supra note 14.

17

 N.W. suggests that a remand is unnecessary because ―[t]he record in [the] 

case so plainly supports [the trial court‘s] ultimate decision to vacate the‖ 

temporary custody order. Yet because the evidence in this case was not so onesided that we can ―discern from the record only one permissible option,‖ K.H. v. 

R.H., 935 A.2d 328, 335 (D.C. 2007), we cannot simply affirm the trial court‘s 

order. 
22

D.C. Code § 4-1301.52 (a)(4), which states that ―[u]nder no circumstances shall 

mental impressions, conclusions, opinions, or theories contained in protected [Safe 

Shores] records be subject to disclosure.‖ 

A.C. does not dispute that Ms. Lopez‘s testimony contained mental 

impressions, conclusions, opinions, or theories. N.W.‘s argument nonetheless fails 

because § 4-1301.52 (a)(4) only specifies that certain information is not ―subject 

to‖ disclosure—that is, that certain information cannot be involuntarily compelled.

D.C. Code § 4-1301.52 (a)(4); see Black’s Law Dictionary 1651 (10th ed. 2014) 

(defining ―subject‖ (adjective) as ―[e]xposed, liable, or prone‖); id. at 1651–52 

(defining ―subject‖ (verb) as ―[t]o cause to undergo some action, agent, or 

operation‖ and ―[t]o expose to the operation of some law or agency‖). By its 

terms, § 4-1301.52 (a)(4) does not preclude the voluntary disclosure of protected 

information. And the relevant committee report reveals that in enacting this 

statute, the D.C. Council was primarily concerned about the possibility of Safe 

Shores being inundated with record requests and with protecting victims‘

confidentiality, not with barring voluntary disclosures of records and information.

See Council of the District of Columbia, Report of the Committee on Human 

Services on Bill 15-389, at 38 (Dec. 6, 2004) (―[Safe Shores‘] important mission to 

serve victims of child abuse depends largely on the willingness of its members to 
23

discuss cases candidly and share information—and on the willingness of victims 

and witnesses to come forward. This mission could easily be undermined by 

constant requests for the production of documents.‖). N.W. does not dispute that 

any protected information disclosed by Ms. Lopez during her testimony was done 

so with the authorization of A.C., who had full legal custody of A.C.W.18

 N.W. argues that it would be unfair for ―an accused [to have protected 

information] used against him while he is effectively limited [by D.C. Code § 4-

1301.52 (a)] from conducting full discovery of such information.‖ But N.W. was 

provided with the relevant Safe Shores records, so the hypothesized unfair 

situation did not materialize.19 N.W. does not meaningfully argue that his due 

process rights were violated, and on the record before us, we see no reason to 

conclude that N.W. lacked an adequate basis on which to cross-examine Ms. 

Lopez.

20

 

18

 The question whether A.C. had the power to consent to disclosure of 

A.C.W.‘s protected information so that the information could be used against N.W. 

is not squarely presented in N.W.‘s brief and we do not address it. 

19

 N.W. claims that he was only furnished redacted records, but he has not 

argued in any detail that he was deprived of crucial information. Moreover, A.C. 

offered the records in evidence in the trial court and represented that they were 

complete; N.W. did not contest this representation at that time. 

20

 N.W. also argues that Ms. Lopez testified outside of her area of expertise 

(continued...)
24

IV.

As explained, the trial court‘s failure to make findings sufficient to permit 

meaningful appellate review compels us to order a remand. Because the trial 

court‘s ruling was not in itself erroneous, we choose to remand the record rather 

than the case. See Lihlakha v. United States, 89 A.3d 479, 490 n.32 (D.C. 2014); 

 

(...continued)

and that she testified about an ultimate issue of fact—the credibility of A.C.W.‘s 

allegations of abuse. In the trial court, N.W. conceded that Ms. Lopez was 

qualified to testify as an expert in clinical mental health, and although he made 

occasional objections (many of which were sustained), he did not object (or 

asserted only a general relevance or form objection) to the purportedly 

objectionable testimony that he identifies on appeal. These errors are thus not 

preserved for appeal. See Wagner v. Georgetown Univ. Med. Ctr., 768 A.2d 546, 

563 (D.C. 2001) (noting that a party has an obligation ―to make an objection to 

evidence  ̳promptly and specifically,‘ at a time when it might be possible for the 

opposing party to meet its force or for the trial court to cure any omission or error‖ 

(quoting In re T.H.B., 670 A.2d 895, 902 (D.C. 1996))). N.W. specifically 

complains about the trial court‘s summary of Ms. Lopez‘s testimony ―that the 

child‘s visible discomfort after disclosing instances of abuse is a typical trauma 

response, and that it did not indicate to Ms. Lopez that the child might be lying.‖ It 

was N.W. who elicited this testimony (on cross-examination) and he did not move 

to strike it. See Gonzalez v. United States, 697 A.2d 819, 826 (D.C. 1997) (holding 

that ―highly prejudicial‖ testimony elicited by the appellant on cross-examination 

was invited error and thus not challengeable on appeal). We note, however, that 

this testimony was not admissible as positive evidence that A.C.W. was telling the 

truth in her statements to Ms. Lopez or that she had been sexually abused. This 

testimony should only be considered as rehabilitative evidence providing ―an 

alternative explanation‖—besides dishonesty—―for the child‘s . . . behavior.‖ 

Mindombe v. United States, 795 A.2d 39, 46 (D.C. 2002) (quoting State v. 

Chamberlain, 628 A.2d 704, 707 (N.H. 1993)); see also Oliver, 711 A.2d at 73.
25

Bell v. United States, 676 A.2d 37, 41 (D.C. 1996). The trial court should 

supplement its findings of fact and set forth its reasoning in greater detail, in 

accordance with the principles set forth in this opinion.21 Once the trial court has 

elaborated on its findings of fact and reasoning, it should return the record to this 

court for further consideration. Because in a record remand we retain jurisdiction

over the case, the parties will not need to file a new notice of appeal. Bell, 676 

A.2d at 41. It is our hope that proceeding in this way will expedite the conclusion

of this matter, which has already lasted two years while the father‘s custodial status 

has remained unresolved.

Further, the stay pending appeal will be vacated. Judge Okun stayed Judge 

Rigsby‘s order vacating the temporary custody order after finding that A.C. had 

satisfied the four factors set forth in our case law: ―that . . . she [wa]s likely to 

succeed on the merits, that irreparable injury w[ould] result if the stay [were] 

denied, that [the] opposing part[y] w[ould] not be harmed by a stay, and that the 

public interest favor[ed] the granting of a stay.‖ Salvattera v. Ramirez, 105 A.3d 

1003, 1005 (D.C. 2014) (quoting Barry v. Washington Post Co., 529 A.2d 319, 

 

21

 ―[I]n a record remand the trial court, lacking jurisdiction,  ̳does not have 

the authority to amend the ruling that is on appeal,‘ [but] it would not amend the 

ruling merely by making findings[] as requested.‖ Lihlakha, 89 A.3d at 490 n.32 

(quoting Bell, 676 A.2d at 41) (citation and ellipsis omitted).
26

320–21 (D.C. 1987)). Judge Okun found that A.C. had shown ―a likelihood of 

success on appeal, because Judge Rigsby‘s [o]rder contains insufficient factual 

findings on the issue of whether [N.W.] committed an intra-family offense against

his five[-]year-old daughter.‖ Judge Okun also found that A.C. would be 

irreparably harmed if visitation were allowed during the course of the appeal and if 

the allegations of sexual abuse were in fact true. Judge Okun found that ―it would 

be contrary to the strong public interest in . . . protecting children from sex abuse to 

allow [N.W.] to have visitation with his daughter during the pendency of [A.C.‘s] 

appeal, in light of the significant sexual abuse allegations . . . and the trial court‘s 

failure to make any findings on that critical issue.‖ Finally, Judge Okun found that 

the harm to N.W.‘s constitutionally protected parental rights resulting from the 

deprivation of custody and visitation pending this appeal was outweighed by the 

potential harm to A.C. These findings are not clearly erroneous or contrary to law, 

and Judge Okun did not abuse his discretion in staying the order vacating the

temporary custody order. See Akassy v. William Penn Apartments Ltd. P’ship, 891 

A.2d 291, 309 (D.C. 2006).

Nevertheless, in light of our ruling today and given that more than a year has 

passed since Judge Okun issued his stay, now is an appropriate time to revisit the 

stay. First, because we are remanding the record for further findings, the primary 
27

motivations for the stay—(1) the likelihood of reversal due to the insufficient 

findings in Judge Rigsby‘s order and (2) the possibility that N.W. abused his 

daughter (a possibility that could not have been ruled out due to the insufficient 

findings)—now have less force and should be reevaluated. See, e.g., Marsh v. 

Johnson, 263 F. Supp. 2d 49, 52 (D.D.C. 2003) (―When circumstances have 

changed such that the court‘s reasons for imposing the stay no longer exist or are 

inappropriate, the court may lift the stay sua sponte or upon motion.‖).

Second, the effect of Judge Okun‘s stay has not been to preserve the status 

quo pending appeal, see Barber v. Bryant, 833 F.3d 510, 511 (5th Cir. 2016) 

(―[T]he maintenance of the status quo is an important consideration in granting a 

stay.‖ (quoting Dayton Bd. of Educ. v. Brinkman, 439 U.S. 1358, 1359 (1978))), 

but rather to convert the temporary emergency custody order into a de facto 

permanent order. We cannot ignore the fact that no factfinder has ever found that 

N.W. harmed A.C.W. and that the factfinder who extensively considered the abuse 

allegations, Judge Rigsby, presumably determined that N.W. did not harm A.C.W., 

given that he vacated the temporary custody order and ruled that A.C. ―ha[d] not 

met her burden.‖ N.W. has thus been deprived of his custodial rights and visitation

(even though supervised) for over two years on the basis of a vague ex parte 

allegation—a result at odds with the ―fundamental liberty interest of natural 
28

parents in the care, custody, and management of their child.‖ Santosky v. Kramer, 

455 U.S. 745, 753 (1982); see In re Ko.W., 774 A.2d 296, 306 (D.C. 2001)

(holding that the trial court was not permitted to prohibit ―visitation without 

conducting a factual inquiry, and without making a finding, as to whether the 

accusations against the father were true or false‖). 

Therefore, although Judge Okun did not abuse his discretion when he issued 

it, the stay should now be vacated. We therefore exercise our power under the All 

Writs Act, 28 U.S.C. § 1651,

22 to do so. See Public Utils. Comm’n v. Capital 

Transit Co., 214 F.2d 242, 245 (D.C. Cir. 1954) (recognizing the power of 

appellate courts under the All Writs Act to grant relief pending an appeal); see also 

Super. Ct. Dom. Rel. R. 62 (g) (stating that the trial court‘s authority to stay a 

judgment pending appeal ―does not limit the power of an appellate court to stay a 

judgment or make any other order with respect to the judgment‖); 11 Charles Alan 

Wright et al., Federal Practice and Procedure § 2908 (3d ed. 2017).

Although we order that the stay be vacated, nothing in this opinion limits the 

 

22

 The All Writs Act provides that ―all courts established by Act of 

Congress‖—as this court was, see Palmore v. United States, 411 U.S. 389, 398 

(1973); District of Columbia v. Greene, 806 A.2d 216, 219 (D.C. 2002)—―may 

issue all writs necessary or appropriate in aid of their respective jurisdictions and 

agreeable to the usages and principles of law.‖ 28 U.S.C. § 1651 (a). 
29

trial court‘s prerogative to issue a new stay order if it is warranted upon 

consideration of the relevant factors, in light of current circumstances.

23

 If the trial 

court projects that it will be able to supplement its findings in Judge Rigsby‘s order 

vacating the temporary custody order and return the record to our court in an 

expedited manner, the trial court can take that into account in deciding whether it is 

appropriate to issue a new stay. New evidence of abuse would also clearly be 

relevant to the determination.

Finally, we note that in its order vacating the temporary custody order, the 

trial court denied a motion for a permanent custody award filed by the mother, 

A.C. As A.C. points out, the motion for a permanent custody award was not a 

subject of the four-day hearing on the motion to vacate, and the court‘s ruling on 

this matter was premature and should accordingly be vacated on remand. Should 

A.C. wish to pursue her motion for a permanent custody award, she may do so 

even while the present appeal concerning the vacatur of the temporary custody 

 

23

 Even though we retain jurisdiction over the action in a record remand, the 

trial court still has the authority to issue a stay order. See, e.g., In re M.O.R., 851 

A.2d 503, 508 n.3 (D.C. 2004) (stating that the filing of a notice of appeal does not 

―divest the trial court of all power to act upon a motion that would affect the 

appealed order‖ and that ―the trial court is always free to consider and decide 

motions that are directed to changed circumstances and that do not directly 

challenge the appealed order‖). 
30

order is pending. The two matters are distinct, and thus hearing and deciding the 

motion for a permanent custody award would not fall within the general ―rule 

against trial court action affecting matters on appeal.‖ Stebbins v. Stebbins, 673 

A.2d 184, 190 (D.C. 1996); see also supra note 23. Any ruling on A.C.‘s motion 

for a permanent custody award should of course be based on current 

circumstances.

V.

For the foregoing reasons, we remand the record to the trial court. We also 

order that the trial court vacate the stay order currently in effect and vacate the 

ruling denying A.C.‘s motion for a new permanent custody award.

So ordered.