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Mother trumps grandparents in custody case, court says

In a family-law dispute involving three generations, a Maryland appeals court has said custody of twin boys should be awarded to their mother — even though a Baltimore judge concluded they would be better off with their maternal grandparents.

In its 3-0 decision, the intermediate Court of Special Appeals said parents are entitled to custody of their children absent a showing that custody would be detrimental to the youngsters.

Nanceane and Ulysses Jones had proven to be loving grandparents during the three years the boys lived with them but did not show that awarding custody to their mother, Shella Brady, would be a detriment, the Court of Special Appeals added in sending the case back to Baltimore City Circuit Court.

“When we consider the relative experiences the children had with the grandparents, on the one hand, and with mother, on the other, against the backdrop of the trial court’s concerns about mother’s credibility, we can understand the instinct to award custody to the grandparents — that is, after all, the boys’ status quo for the last three years,” Judge Douglas R.M. Nazarian wrote in the appellate court’s unreported opinion. “But even with the [trial] court’s legitimate frustrations with mother, an analytical step was missing: a third party such as the grandparents must prove that the children would suffer some detriment if mother were to have custody.”

Nazarian cited the Maryland high court’s 2007 Koshko v. Haining decision regarding what the court called “the fundamental right of parents generally to direct and control the upbringing of their children.” The Court of Appeals added in Koshko that this right “provides the constitutional context which looms over any judicial rumination on the question of custody or visitation.”

The grandparents’ attorney, Colin C. Carmello, said Wednesday that he and his clients are weighing several options: an appeal to Maryland’s top court, arguing before the circuit court that awarding custody to Brady would be detrimental to the boys, or returning them to the mother’s custody.

“The grandparents want what’s best for their grandchildren,” said Carmello, of the Law Offices of Thomas McCarthy Sr. P.C. in Annapolis. The option they choose is “certainly not my call,” he added.

Brady’s attorney, Towson solo practitioner Michael B. Green, praised the court’s decision.

“I believe the Court of Special Appeals stayed consistent with its philosophy that if at all possible a natural parent should be the one to raise their own children even if that means the material opportunities afforded by that parent to the child or children are not as great as the third party,” Green stated in an email message Thursday morning.

Brady, who has been estranged from the boys’ father since 2006, sent her sons to live with the grandparents in March 2011 after she was evicted from her home, according to the appellate court’s opinion. The mother testified the arrangement was meant to be temporary while she looked for a job and a home in Atlanta, where she wanted to raise the boys.

When that effort failed, Brady returned to Maryland in November 2011 but told the grandparents she was not ready to raise the children. The grandparents sued for custody on Dec. 29, 2011, in Baltimore City Circuit Court.

The first hearing was held July 3, 2013, more than 18 months after the complaint was filed. Judge Yvette M. Bryant concluded the grandparents should retain primary physical custody of the boys, as they had provided the boys’ home for the prior two years, and scheduled a second hearing for November 2013.

At that hearing, Brady said she was ready to take the boys back. The mother had an apartment with a bunk bed in a separate bedroom for her sons, now 13 years old, and had been in her current job for a year and a half, she added.

But Bryant concluded the mother suffered from “arrested development” and “while she loves her sons and wants to parent her sons in some ways, her behavior didn’t match what her mouth was saying.” The judge found the grandparents made far superior parenting decisions.

Specifically, Bryant noted the mother’s failure to attempt to regain custody after returning from Atlanta and that she contributed little to the children’s health, educational, disciplinary and social needs while they lived with the grandparents. The judge also found the mother’s house contained a video system and bicycles for the boys but no “enriching materials.”

Bryant awarded shared legal custody to the grandparents and mother, with primary physical custody to the grandparents and visitation to the mother.

But the Court of Special Appeals reversed Friday, saying the conclusion that the grandparents would be better parents is insufficient to trump the strong presumption that custody belongs with the mother.

“[T]hese facts, when examined closely, don’t establish any detriment to the children were they to live with mother; they reveal

instead a rational skepticism that mother will parent as well as the grandparents, given her recent parenting history, given her recent parenting history” Nazarian wrote. “The test here … requires a specific finding of a detriment to the children flowing from exceptional circumstances, and without that finding mother is entitled to parent the children even if the record reveals that the grandparents would do it better.”

Family-law professor Barbara A. Babb questioned the appellate court’s decision, saying it was “a bit harsh” on the trial judge who actually saw and took testimony from the mother and grandparents.

The judge said Brady was not ready to have custody but did not expressly state it would be “detrimental” to the boys to return them to her, added Babb, director of the Sayra and Neil Meyerhoff Center for Families, Children and the Courts at the University of the Baltimore School of Law.

“Just because she [Bryant] didn’t use that magic word, it seems that they have ignored her analysis,” Babb said of the appellate court.

“I think it was requiring too much particularity and specificity from the trial judge, in other words getting the words just right,” added Babb, who was not involved in the case. “I don’t think Koshko requires that.”

Nazarian was joined in the opinion by judges Kathryn Grill Greaff and J. Frederick Sharer, a retired jurist sitting by special assignment.

The case is Brady v. Jones et al., No. 0927, September Term 2014.