Auclair v. Auclair

⁶ DAVIS, Judge. On June 27, 1981, Alison and Nicholas Auclair, appellees, were married. Two children, Austin and Vanessa, were born of the marriage. The family also adopted two children, Jordan and Brenton.

On November 17, 1997, Alison filed a complaint for divorce and custody of Austin, Jordan, and Vanessa in the Circuit Court for Charles County. 1 Nicholas filed a timely counter-complaint for divorce and joint custody of Austin, Jordan, and Vanessa. Alison subsequently was awarded pendente lite custody of Austin, age 16, Jordan, age 14, and Vanessa, age 12. 2 On February 5, 1998, the court appointed Diana Donahue as guardian ad litem for the Auclair children, instructing that she was to represent their interests in, and submit recommendations regarding the parents’ custody dispute. On March 25, 1998, Alison filed a motion to remove Donahue as guardian ad litem. The trial court granted Alison’s request and, on April 14, 1998, the court appointed Cecilia Keller to replace Donahue.

On November 19, 1998, Rudolf A. Carrico, Jr., was hired to represent Austin and Vanessa, appellants, in the divorce and custody proceedings. Carrico filed an entry of appearance on November 28, 1998, explaining that appellants are mature, intelligent children and they had requested that he represent them. On December 15, 1998, the court (Nalley, J.) refused to recognize Carrico’s entry of appearance. A motion to intervene was filed and the merits of the motion were argued at a December 22, 1998 hearing.

Alison appeared in support of the motion for intervention; Keller and Nicholas appeared in opposition to the motion. Following the trial court’s December 28, 1998 denial of appellants’ motion to ⁷ intervene, a timely appeal was noted. 3 Appellants present for our review three questions that we have rephrased as follows: I. Did the lower court commit reversible error when it denied appellants’ motion to intervene?

II

Did the lower court commit reversible error by denying the minor children the right to have an advocate for their preferences participate in their parents’ custody dispute?

III

Did the lower court commit reversible error when it instructed Carrico that he could not speak with the minor children? For the reasons discussed herein, we affirm in part and vacate in part the judgment of the lower court. FACTS On November 2, 1997, Alison filed a complaint for divorce. At a January 21,1998 hearing, pendente lite custody of Austin, Vanessa, and Jordan was granted to Alison.

In addition, on February 8, 1998, the trial court appointed Donahue as the children’s guardian ad litem. The order stated that Donahue would represent the interests of the children in all of the matters relating to their parents’ divorce and would have the authority to waive or assert the children’s privileges, including the psychiatrist-patient privilege. Donahue was further instructed to submit her recommendations of the children’s best interests to the court. Donahue submitted her report on March 5, 1998, after talking with the children, interviewing their therapists, and meeting with counsel for each of the parents.

Under a separate and distinct subheading of the report, Donahue addressed the preferences of Austin, Vanessa, and Jordan, stating that each of the children made a virtually identical request ⁸ to reside with their mother and to visit their father only when they desire. The report further explained: What is apparent now is that the parents are locked in a struggle for control; and the children are prime weapons. Based on conversations with some of the professionals involved with various family members, the undersigned believes that the children were affected by the separation, to the point of missing their father; but quickly were taught that the expression of such feelings was not acceptable. The level of emotional investment by the children in the mother’s issues and perspective is disconcerting.

It seems that they are all being given adult information and are expected to express adult concerns and desires for resolution; and the adult they are expressing is their mother. These children are all very articulate and say very clearly what they want. However, the virtual identity of words and phrases used brings to mind old films of brainwashing techniques used by Communist forces against American soldiers in the 40’s and 50’s. The only difference is that these children are more animated than the brainwashing victims from the films.

They seem to have internalized the messages they are expressing. At the same time, the father in this matter is not without responsibility for the children’s situation. He seems to fail to take into account the importance of all three children that they be able to retain some control over their own lives during this process. It has been reported that, when the children try to discuss the importance of continuing to participate in activities, the father’s response is that they will participate in whatever he says, because he is the father. ⁹ The extent to which such reports are accurate is not something the undersigned can determine; but it is clear that the children, whether rightly or wrongly, do not see his actions in recent months as being motivated primarily by concern for them.

In her conclusion and recommendation, Donahue advised that the children should maintain “some sort of regular contact with their father.” Donahue recognized, however, that the children do not want a visitation schedule and would rather visit their father when they want. Thus, Donahue stated that she felt “bound to make such a recommendation to the [c]ourt.” On March 25, 1998, Alison filed a motion to remove Donahue as the children’s guardian ad litem. She urged that the children have “extreme reservations” about Donahue’s representation of them and “have continued to voice their protest and reluctance to meet and/or discuss any issues relating to this matter” with Donahue. Alison requested that the trial court remove Donahue from the case and permit Austin and Vanessa to be “unaided by any outside counsel or influence from the [clourt.” In response, Donahue agreed that Austin and Vanessa apparently did not want to meet with her and had refused to meet with her on many occasions.

Donahue suggested, therefore, that she be removed from her appointment. She also recommended that the court continue to monitor the children and appoint new counsel for them. Nicholas also did not oppose the motion and expressly agreed with Donahue’s suggestion that new counsel should be appointed for the children. In an order filed on April 14, 1998, the trial court removed Donahue and appointed Cecilia Keller to replace Donahue as the children’s guardian ad litem.

Keller has also encountered great difficulty as the children’s guardian ad litem. Despite several requests, she has been denied the opportunity to meet with the children in their home. For reasons not articulated to this Court, or the court ¹⁰ below, Austin and Vanessa do not want to speak with Keller and she is not welcome in Alison’s home. Per the court’s request, Keller submitted an initial report to the court, relaying appellants’ desires to visit with their father only when they wish as well as her independent suggestion of the children’s best interest. 4 The trial court has also received numerous letters from Austin and Vanessa, in which they vehemently express their preference to live with their mother and visit their father at their own discretion and emphatically relay their concerns about their mother’s expenses.

On July 30,1998, Keller filed a motion for mental evaluation of the parties and the children, explaining that the evaluations would be of great assistance to a determination of the children’s best interest, given the reports of Alison, Austin, and Vanessa that Nicholas was “stalking and harassing” them, Alison’s refusal to comply with court-ordered visitation, and Jordan’s letter to Keller stating that he was “in a ‘lock-down’ in his home while he was in [Alison’s] custody.” In an August 7, 1998 order, the court instructed that each party and the children in his or her pendente lite custody submit to mental evaluations. Although Nicholas complied with the order by allowing himself and Jordan to receive a mental evaluation, Alison has failed to comply. Alison also continued to violate the court’s visitation order. Consequently, on August 11, 1998, Nicholas filed a petition for contempt for Alison’s failure to provide the ordered visitation.

In addition, on October 29, 1998, Keller filed a second motion in support of the mental evaluations. On November 23, 1998, Carrico purported to enter an appearance on appellants’ behalf. The trial court refused to recognize the appearance and, on December 17, 1998, Carrico filed a motion to intervene, urging that Austin and Vanessa requested his representation in their parents’ lawsuit. A ¹¹ hearing was held on December 22, 1998, addressing the motion to intervene as well as Alison’s failure to comply with the orders for visitation and mental evaluations.

The court concluded that appellants were not entitled to intervene as a party and that Alison had failed to comply with both the visitation order and the mental evaluation order. This appeal was timely noted from the court’s January 28, 1999 order denying the motion to intervene. DISCUSSION I Appellants contend that the trial judge committed reversible error by denying their motion to intervene. In support of this contention, they maintain that their mother is not representing their interests because she has violated court orders on several occasions.

The children also aver that Keller does not and is not able to communicate their interests to the court because there is a conflict of interest between their interests and the interests of their brother, Jordan. They further insist that Keller has failed to represent them zealously, as demonstrated by her suggestion that they undergo a mental evaluation. Finally, Austin and Vanessa contend that intervention should be permitted because Austin is sixteen-years-old and a sixteen-year-old child may petition for change of custody on his or her own behalf. Appellants apparently assert that they are entitled to intervene as a matter of right. 5 Intervention of right is governed by Md. Rule 2-214(a) (1999), which states: Upon timely motion, a person shall be permitted to intervene in an action: (1) when the person has an unconditional right to intervene as a matter of law; or (2) when the ¹² person claims an interest relating to the property or transaction that is the subject of the action, and the person is so situated that the disposition of the action may as a practical matter impair or impede the ability to protect that interest unless it is adequately represented by existing parties.

Four requirements must be met before an individual is entitled to intervention of right: “(1) the application for intervention must be timely; (2) the applicant[s] must have an interest in the subject matter of the action; (3) disposition of the action would at least potentially impair the applicant[s’] ability to protect [their] interest; and (4) the applicants’] interest must be inadequately represented by existing parties.” Stewart v. Tuli 82 Md.App. 726, 730 , 573 A.2d 109 (1990) (quoting Hartford Ins. Co. v. Birdsong, 69 Md.App. 615, 622 , 519 A.2d 219 (1987)). Appellants satisfy three of the four requirements for intervention. First, there is no dispute that the motion for intervention was timely filed.

Likewise, it is beyond dispute that Austin and Vanessa have an interest in the subject matter of the litigation. This interest is clearly reflected in the best interest of the child standard that is used to resolve custody determinations. See Leary v. Leary, 97 Md.App. 26, 48 , 627 A.2d 30 (1993). The best interest standard includes consideration of the child’s preference for custody and visitation; however, the child’s best interest — not his or her wishes — is the basis for the trial court’s ruling.

The Court of Appeals has penned: [T]he child’s own wishes may be consulted and given weight if he [or she] is of sufficient age and capacity to form a rational judgment. The desires of the child are consulted, not because of any legal right to decide the question of custody, but because the court should know them in order to be better able to exercise its discretion wisely. It is not the whim of the child ¹³ that the court respects, but [the child’s] feelings, attachments, reasonable preference and probable contentment. Ross v. Pick, 199 Md. 341, 353 , 86 A.2d 463 (1952), quoted in Leary, 97 Md.App. at 48 , 627 A.2d 30 .

Additionally, the children have a substantial interest in the outcome of their parents’ custody dispute and are individuals with rights recognized by the courts, 6 even though they are not formally recognized parties to the lawsuit. See Lapides v. Lapides, 50 Md.App. 248, 253 , 437 A.2d 251 (1981). As minors, children are not legally competent to act on their own behalf. See Miller v. Miller, 677 A.2d 64, 66 (Me.1996); In re Marriage of Hartley, 886 P.2d 665 , 672 n. 9 (Colo.1994).

Indeed, “[t]he very reason for contested custody proceedings is that the children involved are not yet mature enough to be self-determining.” See In the Interest of J.P.B. and C.R.B., 419 N.W.2d 387, 391 (Iowa 1988); In re Marriage of Rolfe, 216 Mont. 39 , 699 P.2d 79, 85 (1985). Thus, Austin and Vanessa have a legally-recognized interest in their parents’ lawsuit, even though they are unable to be parties to the litigation. See Lapides, 50 Md.App. at 253 , 437 A.2d 251 . Third, disposition of the custody dispute has the potential to impair appellants’ ability to protect their interests.

A custody order may not be altered absent a material change in circumstances warranting a modification. See Jordan v. Jordan, 50 Md.App. 437, 443 , 439 A.2d 26 (1982). A child’s parents, as well as any child at least sixteen years of age, may petition the court to modify the order. See Md.Code (1999 Repl.Vol.), Family Law (F.L.) § 9-103.

Nevertheless, the heightened showing required for a change of custody persuades this Court that, after a child’s custody has been resolved, his or her ability to change the order is at least potentially impaired by the initial determination. ¹⁴ In the instant case, the trial court denied the motion for intervention, reasoning that the children’s interests were adequately represented in the lawsuit. Our analysis also turns on the fourth prong of the test, namely, whether the children’s interests are inadequately represented by the existing parties. If the children’s interests are not identical to an interest already represented, they must be permitted to intervene as a matter of right. On the other hand, if their interests are identical to that of an existing party, a “compelling showing must be made in order to demonstrate inadequacy of [the existing] representation” and, thus, permit intervention as a matter of right.

See Maryland Radiological Soc., Inc. v. Health Servs. Cost Review Comm’n., 285 Md. 383, 391 , 402 A.2d 907 (1979). In other words, the applicant may intervene “only if he [or she] can show collusion, nonfeasance, or bad faith on the part of those existing parties with whom his [or her] interest coincides.” Id. The Children’s Mother Appellants correctly assert that their mother is not able to adequately represent their interest in the lawsuit.

In Ford v. Ford, 371 U.S. 187, 193 , 83 S.Ct. 273 , 9 L.Ed.2d 240 (1962), the Supreme Court ruled that parents involved in a custody dispute frequently are unable to make decisions relating to their children’s custody because “the estrangement of husband and wife beclouds parental judgment with emotion and prejudice.” Thus, the Court concluded that a trial judge’s determination of a child’s best interests during a custody lawsuit is better informed when a third party is assigned the task of determining the child’s interests. Id. In Maryland, the Court of Appeals reached a similar decision, ruling that, when parents are involved in a “continuing custody battle,” they cannot make legal decisions that relate to the underlying lawsuit on the child’s behalf. See Nagle v. Hooks, 296 Md. 123, 127-28 , 460 A.2d 49 (1983).

In Nagle , a ten-year-old boy was at the center of his parents’ ongoing dispute over custody. Although the boy’s mother was awarded permanent custody, the boy’s father filed for a change of ¹⁵ custody. At trial, the father attempted to have the boy’s psychiatrist testify regarding diagnosis and treatment of the boy’s mental or emotional disorder. As a result, an issue arose regarding who was entitled to waive the boy’s statutory psychiatrist-patient privilege.

The Court of Appeals ruled that it was inappropriate for the parents to control the privilege and the trial court was required to appoint a guardian ad litem to act in the child’s best interest: Although arguably the parent who pursuant to court order has custody of a child could qualify as a “previously appointed guardian” under section 9 — 109(c), it is patent that such custodial parent has a conflict of interest in acting on behalf of the child in asserting or waiving the privilege of nondisclosure. We believe that it is inappropriate in a continuing custody “battle” for the custodial parent to control the assertion or waiver of the privilege of nondisclosure. Keeping in mind “the best interest of the child,” we believe the appointment of an attorney to act as the guardian of the child in the instant matter is required. Furthermore, the appointment of a neutral third party would eliminate the very real possibility, as may exist in this case, of one of two warring parents exercising the power of veto for reasons unconnected to the polestar rule of “the best interests of the child.” Id. at 127-128 , 460 A.2d 49 (footnote omitted).

The policy set forth by the Nagle Court is applicable to the instant ease. Austin and Vanessa are unable to represent themselves in this dispute. Although Alison has pendente lite custody and may otherwise be deemed the parent responsible for acting on the children’s behalf, Alison is a party to the dispute. Consequently, “it is patent that [she] has a conflict of interest in acting on behalf of the [children].” Id. at 127 , 460 A.2d 49 .

Accordingly, the interests of Austin and Vanessa are ¹⁶ best represented by a neutral third party. See id. at 128 , 460 A.2d 49 . Furthermore, an attorney for the children’s parents “cannot be expected to truly represent the children because [the attorney] ultimately owe[s] loyalty to the[ ] client.” Tari Eitzen, A Child’s Right to Independent Legal Representation in a Custody Dispute, 19 Fam. L.Q. 53 , 62 (1985).

See also Veazey v. Veazey, 560 P.2d 382, 388 (Alaska 1977) (noting that, “[i]n a number of instances, [an] attorney [for a parent] cannot assert the interests of the child without creating a conflict of interest”), overruled on other grounds, Deivert v. Oseira, 628 P.2d 575 (Alaska 1981). Alison’s attorney owes an obligation to represent Alison’s interests with loyalty and zeal. See Md. Rules of Professional Conduct, Rule 1.2. Consequently, he cannot also zealously represent the interests of Austin and Vanessa.

The Guardian Ad Litem In actions concerning a minor child’s custody, visitation, or child support, “the court may: (1) appoint to represent the minor child counsel who may not represent any party to the action; and (2) impose against either or both parents counsel fees.” F.L. § 1-202. Recognizing that children may become pawns in their parents’ fight to prevail on issues such as custody, visitation, or child support, see Lapides, 50 Md. App. at 250 , 437 A.2d 251 , the legislature has vested in trial judges the authority to appoint attorneys, or guardians ad litem, to serve the crucial function of representing children’s rights and interests in their parents’ custody disputes. See F.L. § 1-202. Thus, it has become the policy of this State, as enunciated in Nagle , that, when the parents are involved in a custody dispute and the child requires representation, the “best interest of the child” may require appointment of a neutral attorney to act as the child’s guardian.

See Nagle, 296 Md. at 128 , 460 A.2d 49 . Our concern is whether a court-appointed guardian is an adequate representative of the children’s interests. See Stewart, 82 Md.App. at 730 , 573 A.2d 109 . At oral argument before us, the issue, as framed, was ¹⁷ whether the guardian could act, without conflict, as advocate for the children, transmitter of their positions, and court’s investigative agent charged with making a recommendation.

Although the labels and the roles of child representatives in custody disputes vary, over half of the states in this country-have enacted statutes enabling trial courts to appoint independent representatives for children. See Eitzen, 19 Fam. L.Q. at 66. With the exception of only a few states, the role of the independent representatives, or guardians ad litem, is to represent the child’s best interests.

In Clark v. Alexander, 953 P.2d 145, 152 (Wyo.1998), the Supreme Court of Wyoming explained that [t]he guardian ad litem’§ role has been characterized as investigator, monitor, and champion for the child. In custody matters, the guardian ad litem has traditionally been viewed as functioning as an agent or arm of the court, to which it owes its principal duty of allegiance, and not strictly as legal counsel to a child client. In essence, the guardian ad litem role fills a void inherent in the procedures required for the adjudication of custody disputes. Absent the assistance of a guardian ad litem, the trial court, charged with rendering a decision in the “best interests of the chüd,” has no practical or effective means to assure itself that all of the requisite information bearing on the question will be brought before it untainted by the parochial interests of the parents.

Unhampered by the ex parte and other restrictions that prevent the court from conducting its own investigation of the facts, the guardian ad litem essentially functions as the court’s investigative agent, charged with the same ultimate standard that must ultimately govern the court’s decision — i.e., the “best interests of the child.” Although the child’s preferences may, and often should, be considered by the guardian ad, litem in performing this traditional role, such preferences are but one fact to be investigated and are not considered binding ¹⁸ on the guardian. Thus, the obligations of a guardian ad litem necessarily impose a higher degree of objectivity on a guardian ad litem than is imposed on an attorney for an adult. Id. at 152 (citations omitted). The Clark Court’s explanation of a guardian’s flexible role is consistent with the role Maryland Courts have assigned to guardians ad litem.

This Court has observed that, “[w]hen the [trial] court appoints an attorney to be a guardian ad litem for a child, the attorney’s duty is to make a determination and recommendation after pinpointing what is in the best interests of the child.” Leary, 97 Md.App. at 40 , 627 A.2d 30 . The three state appellate courts that have had the opportunity to address the question raised by appellants all agreed that a child is not entitled to intervene in his or her parents’ custody dispute. See Miller, supra; Hartley, supra; J.A.R. v. County of Maricopa, 179 Ariz. 267 , 877 P.2d 1323 (1994). In Miller , the Supreme Judicial Court of Maine concluded that minor children are not entitled to intervene in their parents’ custody dispute.

See Miller, 677 A.2d at 70 . Pursuant to statute, trial courts in Maine may appoint a guardian ad litem for children in custody disputes. See id. at 67 . The Court noted, however, that there is no statutory provision entitling children to an additional representative.

See id. at 67-68 . Furthermore, a child’s rights are not violated by the denial of a motion to intervene. See id. at 70 . The Court explained that, although the children had an interest in the outcome, there was little risk of an erroneous determination of their interests because the trial court and the guardian ad litem were obligated to act in the children’s best interests and consider their preferences for custody.

See id. at 68-70 . Finally, the Court concluded that the State had a substantial interest in not including children as parties represented by counsel, because allowing the intervention would complicate the proceedings and “result in a substantial additional financial burden on both the parties and [the] court system.” Id. at 70 (footnote omitted). ¹⁹ Similarly, the Supreme Court of Colorado has ruled that, when a state statute provides for a court-appointed guardian ad litem, the child is not also entitled to intervene on his or her own behalf with an attorney of his or her choice. See Hartley, 886 P.2d at 674 . Analogous to F.L. § 1-202, the relevant Colorado statute provides that the trial court has the discretion to appoint a guardian ad litem in custody lawsuits.

See id. at 673. Denying the child’s motion to intervene, the Court concluded that the child’s wishes, as well as the child’s best interests, were already represented by the boy’s guardian ad litem,. See id. at 672. Furthermore, the Court determined that the child was not entitled to hire his own attorney, explaining that an attorney advocate was not statutorily provided for and that, because his interests were already a mandatory consideration of the trial court, there was no need for an additional attorney to represent him at the proceedings, ¿lee id.

Thus, despite the child’s extraordinary interest in the outcome of the custody dispute, there was no good cause for allowing the child to intervene as a party when his interests were already a requisite consideration of the guardian and the trial court. See id. at 673. A similar result must be reached in the instant case. The General Assembly has provided trial courts with the discretion to appoint a guardian ad litem,.

See F.L. § 1-202. The appointed attorney may fill various roles, including reporting the children’s preferences to the court, investigating the reasons for the children’s preferences, and making an independent determination of their best interests. See Leary, 97 Md.App. at 40 , 627 A.2d 30 . No additional representation, however, is provided by Maryland’s statutory scheme.

Because Keller is obligated to represent the children’s best interests, the interests she will advocate are identical to the children’s interests, even though the children may not agree with her best-interest recommendation. Keller’s determination of their best interests, as well as the trial judge’s ultimate ruling, will take into consideration the children’s wishes. The children are not entitled to additional representation of their preferences. ²⁰ Our conclusion is not altered by the children’s complaints that Keller is not zealously advocating their wishes and is representing Justin, who has expressed a different preference. Keller’s representation of the children has been consistent with the guidelines this Court enunciated in Leary.

See Leary, 97 Md.App. at 40 , 627 A.2d 30 . On several occasions, Keller has arranged to meet with Austin and Vanessa to learn their concerns about and preferences for custody and visitation. In her report to the trial court, Keller, under a separate and distinct heading specifically devoted to the sole issue, addressed the children’s preferences. She stated unequivocally that Vanessa and Austin wish to remain in their mother’s custody and are not in favor of a regular visitation schedule with their father.

In addition, she made clear that, due to school and social obligations, they would prefer to visit their father only “when it suits them.” Despite the children’s assertions that they are unable to communicate well with Keller, 7 she has articulated the children’s preferences as expressed in their letters to the trial judge. We are not aware of any instances in which Keller failed to inform the court of the children’s wishes. In addition, the fact that Keller filed a motion in support of mental evaluations