Volodarsky revisited: Same standard applies to denial of all visitation

Accusations of sexual abuse by a parent can be judged under a “preponderance of evidence” standard in visitation cases even if all visitation is denied, the Court of Special Appeals has held.

The reported opinion rejects a possibility the Court of Appeals left open in a footnote several years ago when it decided a case with similar facts — Volodarsky v. Tarachanskaya, 397 Md. 291 (2007).

In Volodarsky, a supervised visitation case, the top court affirmed the use of the “preponderance of evidence” standard; however, in footnote 5, it remarked that it was not addressing whether a higher burden would apply if all visitation were denied.

“We shall now address that question,” Chief Judge Peter Krauser wrote last month for the unanimous three-judge panel deciding the appeal of Michael D.

Michael D.’s 8-year-old daughter accused him of touching her inappropriately during supervised visits at a New Jersey courthouse — and further alleged that he had sexually abused her at least a year earlier in Annapolis, where the family lived before the parents separated.

The girl’s description of the abuse escalated over the course of a few months, requiring more than one investigation by the Department of Social Services and a comparable out-of-state agency. Ultimately, DSS’ third investigation “ruled out” Emily’s claims, but those results were not available at the time of the custody and visitation hearing, held on 11 days over the course of four months in Anne Arundel County Circuit Court.

After holding the hearing and interviewing the child in chambers, the judge applied a preponderance of the evidence standard and found “reasonable grounds to believe” that Michael had sexually abused Emily. Applying Family Law Article §9-101, the court also found was unable to determine that the abuse would not recur. Therefore, it denied Michael all right of visitation.

Michael D. appealed, arguing that the Volodarsky footnote indicated that the higher “clear and convincing evidence” standard applied under §9-101 when all visitation is denied. The Court of Special Appeals disagreed, saying the footnote “simply left it an open question.”

“The question before us turns on the meaning of the phrase ‘reasonable grounds to believe,’ as it is used in FL § 9-101, and the burden of proof that locution mandates…,” Krauser wrote.

“[T]he statute was written so that ‘reasonable grounds to believe’ that abuse or neglect has occurred would require the court to deny visitation rights. And ‘reasonable grounds to believe” means, as the Court of Appeals has pointed out, a ‘preponderance of the evidence,’” Krauser wrote.

“For us to hold otherwise… would be in clear contradiction of the ‘reasonable grounds to believe’ language of FL § 9-101 and would impose a burden of proof not contemplated by the Legislature. Such a change lies within the purview of the Legislature, not the judiciary.”

The decision does not affect the steps Michael D. can take to regain custody, the court noted.

The case is Michael D. v. Roseann B., No. 0047, Sept. Term, 2014. The reported opinion is available online and will be reprinted in full in next month’s edition of Maryland Family Law Update.


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