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Court eases parental-fitness standard in grandparents’ rights case

Court of Appeals lists 6 fitness factors

In a landmark family-law ruling, Maryland’s top court held Tuesday that grandparents seeking custody of a grandchild need show only by a preponderance of the evidence that the parent is unfit.

In its decision, the Court of Appeals ruled unnecessary the harder-to-show standard of clear and convincing evidence of unfitness. The court’s relaxed standard appears at odds with other state and federal-court rulings asserting that the presumption favoring parental custody is constitutionally protected, most famously in the U.S. Supreme Court’s pro-parent  decision in Troxel v. Granville in 2000.

The Maryland high court’s ruling “flies in the face” of Troxel, said family-law attorney Ferrier R. Stillman, of Tydings & Rosenberg LLP in Baltimore. “A parent’s rights are so paramount.”

Stripping a parent of custody is “easier to do if it’s only preponderance of the evidence and not clear and convincing evidence,” Stillman added.

The Court of Appeals decision was its broadest on the rights of grandparents and other relatives and “third parties” in trying to seek custody of a child based on a parent’s unfitness or a showing that exceptional circumstances exist that would make the child’s interests best served by the custodial change.

In its ruling, the Court of Appeals said grandparents and other third parties seeking custody must state in their initial pleading sufficient allegations of fact that would show the parental unfitness or exceptional circumstances. This exacting pleading requirement removes the need for a preliminary hearing and permits the judge to get to the issue of custody sooner, which Stillman called a welcome change.

“The longer a custody case goes on, the worse it is for the children,” said Stillman, who was not involved in the Court of Appeals litigation.

The high court also announced six factors for judges to consider in deciding if a parent is so unfit that a child should be turned over to a grandparent or other “third-party” suing for custody.

These factors include abandonment, deep neglect or infliction of physical or mental injury. Other factors are whether the parent has an emotional or mental illness that makes them unable to care and provide for the child, has renounced his or her parental duties or has engaged in conduct detrimental to the child’s welfare, Judge Michele D. Hotten wrote in the court’s majority opinion.

Stillman voiced concern that the emotional and mental illness factor might make otherwise confidential psychologist reports evidence in any custody proceedings, whether between parents or involving third parties.

“Any time one party is allowed to put another party’s mental and emotional state into evidence, it can compel the party who is being accused of having mental or emotional problems to waive their own patient-therapist privilege to prove their own good mental health,” Stillman said. “This (Court of Appeals) case opens the door to … probably compelling one or both parties to waive their therapist-patient privilege.”

With regard to exceptional circumstances, a judge must conclude that the child “has been outside the care and control of the biological parent for a sufficient period of time for a court to conclude that the constructive physical custody of the child has shifted from the biological parent to a third party,” Hotten wrote.

In other words, the judge must “determine whether a biological parent has, in effect, abandoned his  or her child.” Hotten added.

The high court rendered its decision in overturning a trial judge’s ruling that grandparents should be granted custody of a grandchild whose mother had engaged in polyamorous behavior and illicit drug use before separating from her husband, the child’s father, and prior to the grandparents seeking custody.

The mother’s earlier misbehavior did not “overcome the constitutional presumption favoring parental custody” in light of the attentiveness she has shown her child, Hotten wrote for the court.

The Montgomery County Circuit Court judge’s decision had been upheld by the intermediate Court of Special Appeals, prompting the mother, Natasha Burak, to seek review by the high court.

Burak’s attorney hailed the mother’s perseverance after being “beaten down” by the lower courts.

“Natasha has always fought for her child, has always tried to do the right thing,” said Scott Conwell, a Jarrettsville solo practitioner. “The mother never quit.”

When the Court of Appeals agreed to hear Burak’s appeal, Conwell knew the judges would set new law.

“This was going to be the grandparents, third-party custody case,” Conwell said.

The decision “certainly gives the guidelines to the circuit courts on the factors they need to address,” he added. “It gives guidance to attorneys on what they should be focusing on.”

“The next motion to intervene (by a grandparent or other third party) is going to have to address these factors, which I think will limit, or at least in practice limit, the opportunity to intervene,” Conwell said. “This is all new law.”

In ruling for Burak, the high court said the trial judge erroneously found the mother to be neglectful, even expressing doubt that she would rescue the child from drowning.

“(T)he record reflects that throughout the child’s life, and even more so after petitioner and father separated, petitioner remained active in the child’s upbringing and care, including providing shelter to the child in the marital home, deciding what school the child should attend, making doctor’s appointments for the child, organizing his transportation  to those appointments, responding to the child’s behavioral problems at school, and seeking out ways to address those behavioral difficulties,” Hotten wrote.

She was joined in the 107-page opinion by Chief Judge Mary Ellen Barbera and Judges Clayton Greene Jr., Sally D. Adkins. Judge Shirley M. Watts joined in the judgment only.

In dissent, Judge Joseph M. Getty said the court’s factors blur “the lines between unfitness, which may well be found when a parent is very involved in a child’s life, and exceptional circumstances, which generally occurs when a parent has abandoned a child or otherwise ceded the child’s chare and upbringing to a third party.”

The court’s decision is “likely to sow confusion as to what is required for a trial court to find unfitness as opposed to exceptional circumstances,” added Getty, joined in dissent by Judge Robert N. McDonald. “And the emphasis on abandonment under both prongs is likely to be applied – improperly — to deny custody to third parties when those parties have shown significant evidence indicating that the biological parent(s) is unfit or lacks a genuine desire to have the child, but  the parent(s) has not outright abandoned the child.”

Getty also said the court should not have overturned the judge’s custody order based on the new standards it set for determining fitness and exceptional circumstances. Rather, the high court should have remanded the case to the judge.

“This kind of ex post facto overruling of the trial court’s decision based on entirely new legal criteria is highly improper,” Getty wrote. “It is profoundly unfair to the grandparents to reverse the grant of custody based on newly devised standards, without affording the grandparents an opportunity to make their case under those new standards. And, by applying the new standards to the facts of the case, this court usurps the trial court’s role to apply the law to the facts and make discretionary findings.”

The grandparents’ attorney, Rockville solo practitioner Steven J. Gaba, did not return a telephone message seeking comment.

The high court rendered its decision in Natasha Burak v. Mark Burak et al., No. 97, September Term 2016.

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