concurring:
Although I join in the opinion of the court, of which I am the author, I think it appropriate to discuss briefly an additional consideration which played a significant role in persuading me, in this fairly close case, to vote to remand rather than to affirm.
As the court explicitly recognizes, there is certainly evidence in this record that renders an award of custody to the father quite plausible. I have no doubt that the trial judge addressed his difficult task conscientiously, and that he made that award on the basis of his bona fide belief that it was in the interest of the two boys. I cannot say that this belief was unreasonable. Indeed, counsel for the mother do not claim that the record required the judge to award custody to the mother. The question before us is whether, in ordering what may indisputably be a permissible outcome, the judge relied on an incorrect legal standard. The court reaches its conclusion that the judge may well have applied an incorrect standard largely because of the absence from his order of “any meaningful analysis of the evidence of domestic violence.” Opinion of the court at [17] (quoting Ford v. Ford, 700 So.2d 191, 196 (Fla.Ct.App.1997) (ellipsis omitted)).
But there is an additional and equally persuasive reason for my concern that the trial judge’s resolution of the admittedly difficult case before him may not have been based on correct legal principles. In declining to authorize a transcript of the proceedings for the mother, who was proceeding informa pauperis, the judge characterized her appeal as frivolous. That characterization, as the opinion of the court points out, is demonstrably unwarranted. In particular, as set forth in Part II of the court’s opinion, the statutory law of the District makes it abundantly clear that a parent’s commission of intrafamily offenses must be a significant factor in a court’s custody calculus, for the legislature has recognized the danger that spousal abuse may often affect the safety and welfare of the children.
In light of that statutory policy, it surely follows that an appeal from an order awarding custody to an abuser will seldom, if ever, be “insubstantial.” When the trial judge characterized this appeal as “frivolous,” he cannot, in my opinion, have sufficiently factored into his analysis the unequivocal policy adopted by the legislature in this regard.1 It has even been suggest-
*1121ed that “a batterer is unfit for any type of custody.” Developments in the Law—Battered Women and Child Custody Decisionmaking, 106 Harv. L.Rev. 1597, 1613 n. 119 (1993). I am not prepared to go so far, but we should not hesitate to say that in most instances, the contention that a batterer is unfit must be taken seriously and not dismissed as insubstantial.
I recognize that the judge’s denial of the transcripts because of the perceived frivolous nature of the appeal occurred after his award of custody, so that technically, the judge’s dismissive characterization is not a part of the record of the mother’s appeal from that award. The two appeals have been consolidated, however, and in my view, the two orders on appeal — the award of custody to the father and the denial of the transcripts — are parts of a single continuum based on the judge’s consistent perception of the nature and merits of the dispute. Although reliance on the absence of explicit analysis of the father’s intrafam-ily offenses in the judge’s order, standing alone, makes this a somewhat close call, I agree that this omission precludes affir-mance of the custody decision and warrants a remand. For me, however, the judge’s description of the appeal from the denial of the transcript as “frivolous” provides some icing on the cake.
. I also note that in this case, it is undisputed that the children expressed a preference for living with their mother and that the GAL recommended that they be permitted to do so. In addition, the judge's rejection of the GAL’s recommendation was based, at least in part, on an erroneous finding.