Azizova v. Suleymanov

Natella Azizova v. Muzaffar Suleymanov, No. 2338, September Term, 2018. Opinion by Battaglia, J. CHILD CUSTODY – BEST INTEREST OF THE CHILD – GENDER BIAS IN JUDICIAL DECISION MAKING The trial judge abused her discretion in awarding father primary physical custody of child based upon the finding that the mother was unfit to parent, a finding predicated on the trial judge’s stereotypes about the fragility of infancy and the mother’s inability to function in the best interest of the child, because of the mother’s youth, her part-time work and enrollment in school, as well as an incident of drunkenness in which the father was involved, but the child was not present. Circuit Court for Washington County Case No.: 21-C-17-058844 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2338 September Term, 2018 ______________________________________ NATELLA AZIZOVA v. MUZAFFAR SULEYMANOV ______________________________________ Leahy, Wells, Battaglia, Lynne, A. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Battaglia, J. ______________________________________ Filed: November 21, 2019 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2019-11-21 10:52-05:00 Suzanne C. Johnson, Clerk This appeal stems from an order of a trial judge sitting in the Circuit Court for Washington County, who awarded appellee, Muzaffar Suleymanov, primary physical custody of the child he fathered with appellant, Natella Azizova, who asks us to reverse this determination.1 For the reasons that follow, we shall hold that the trial judge abused her discretion in awarding Mr. Suleymanov primary physical custody of the child and shall vacate and remand the matter for a new hearing. 1 Appellant, Natella Azizova, presents us with the following seven questions: 1.

Whether the Circuit Court abused its discretion in awarding primary physical custody to Appellee. 2. Whether the Circuit Court’s findings were clearly erroneous and unsupported by the evidence. 3. Whether the Circuit Court abused its discretion in ordering the minor returned to Hagerstown. 4. Whether the Circuit Court erred in basing its decision on stale, dated, and irrelevant evidence. 5.

Whether the Circuit Court abused its discretion in making provisions regarding long-term custody of the child and restricting Appellant’s visitation commencing 2021. 6. Whether the Circuit Court erred in failing to make provisions for regular contact between Appellant and the minor when in the custody of Appellee (and, indeed, vice versa as well). 7. Whether the findings made and the judgment and final custody order entered by the Circuit Court were erroneous, clearly erroneous, and an abuse of discretion, and contrary to law. LAW It is well established that custody determinations are to be made by a careful examination of the specific facts of each individual case; the “fact finder is called upon to evaluate the child’s life chances in each of the homes competing for custody and then to predict with whom the child will be better off in the future.” Montgomery Cnty. v. Sanders, 38 Md. App. 406, 419 (1977).

Courts possess wide discretion in determining questions concerning the welfare of children, the authority of which “clearly empowers courts applying the best interests standard to consider any evidence which bears on a child’s physical or emotional well-being.” Bienenfeld v. Bennett-White, 91 Md. App. 488 , 503– 04, cert. denied, 327 Md. 625 (1992). Although courts are not limited to a list of factors in applying the best interest standard in each individual case, the cases of the Court of Appeals and of this Court, beginning with Montgomery County Department of Social Services v. Sanders, 38 Md. App. 406 (1977) and Taylor v. Taylor, 306 Md. 290 (1986), have set forth a non-exhaustive delineation of factors that a court must consider when making custody determinations, which have been consolidated in Fader’s Maryland Family Law, a veritable compendium of domestic relations law: (1) The fitness of the parents; (2) The character and reputation of the parties; (3) The requests of each parent and the sincerity of the requests; (4) Any agreements between the parties; (5) Willingness of the parents to share custody; (6) Each parent’s ability to maintain the child’s relationships with the other parent, siblings, relatives, and any other person who may psychologically affect the child’s best interest; (7) The age and number of children each parent has in the household; (8) The preference of the child, when the child is of sufficient age and capacity to form a rational judgment; 2 (9) The capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare; (10) The geographic proximity of the parents’ residences and opportunities for time with each parent; (11) The ability of each parent to maintain a stable and appropriate home for the child; (12) Financial status of the parents; (13) The demands of parental employment and opportunities for time with the child; (14) The age, health, and sex of the child; (15) The relationship established between the child and each parent; (16) The length of the separation of the parents; (17) Whether there was a prior voluntary abandonment or surrender of custody of the child; (18) The potential disruption of the child’s social and school life; (19) Any impact on state or federal assistance; (20) The benefit a parent may receive from an award of joint physical custody, and how that will enable the parent to bestow more benefit upon the child; (21) Any other consideration the court determines is relevant to the best interest of the child. Cynthia Callahan & Thomas C. Ries, Fader’s Maryland Family Law § 5-3(a), at 5-9 to 5- 11 (6th ed. 2016) (footnotes omitted). Fader’s Maryland Family Law also delineates other factors that courts are encouraged to consider in custody determinations: (1) the ability of each of the parties to meet the child’s developmental needs, including ensuring physical safety; supporting emotional security and positive self-image; promoting interpersonal skills; and promoting intellectual and cognitive growth; (2) the ability of each party to meet the child’s needs regarding, inter alia, education, socialization, culture and religion, and mental and physical health; (3) the ability of each party to consider and act on the needs of the child, as opposed to the needs or desires of the party, and protect the child from the adverse effects of any conflict between the parties; (4) the history of any efforts by one or the other parent to alienate or interfere with the child’s relationship with the other parent; (5) any evidence of exposure of the child to domestic violence and by whom; (6) the parental responsibilities and the particular parenting tasks customarily performed by each party, including tasks and responsibilities performed before the initiation of litigation, tasks and responsibilities performed during 3 the pending litigation, tasks and responsibilities performed after the issuance of orders of court, and the extent to which the tasks have or will be undertaken by third parties; (7) the ability of each party to co-parent the child without disruption to the child’s social and school life; (8) the extent to which either party has initiated or engaged in frivolous or vexatious litigation, as defined in the Maryland Rules; and (9) the child’s possible susceptibility to manipulation by a party or by others in terms of preferences stated by the child.

Id. at § 5-3(b), at 5-11 to 5-12 (footnote omitted). Judicial Bias Unequivocally, the test with respect to custody determinations begins and ends with what is in the best interest of the child. Boswell v. Boswell, 352 Md. 204, 236 (1998). In between, a trial judge must determine whether a particular issue related to a parent presents harm to the health and welfare of a child or affects the child’s development, and whether there is a nexus between the parental issue and any adverse impact on the child’s overall well-being.

Id. at 235–38; see also Whaley v. Whaley, 399 N.E.2d 1270 (Ohio Ct. App. 1978). The Court of Appeals and this Court have time and time again affirmed custody determinations where the trial judge embarked upon a thorough, thoughtful and well- reasoned analysis congruent with the various custody factors. See Santo v. Santo, 448 Md. 620, 646 (2016) (The decision of the circuit court was “predicated on its thorough review of the Taylor factors, deliberation over custody award options, sober appreciation of the difficulties before it, and use of strict rules including tie-breaking provisions to account for the parties’ inability to communicate” and “was rational and guided by established principles of Maryland law. No abuse of discretion occurred in this case.”); Reichert v. 4 Hornbeck, 210 Md. App. 282, 308 (2013) (“[T]he court ‘articulated fully the reasons that support[ed the] conclusion’ that joint physical and legal custody was appropriate through an extensive and thoughtful consideration of all suggested factors.”); Hughes v. Hughes, 80 Md. App. 216 , 234 n.5 (1989) (stating that the trial judge’s decision to deny father’s request for joint custody consisted of “thorough and well reasoned analysis”).

In situations, however, where a trial judge, while assessing a particular factor, has been guided by their personal beliefs in fashioning an outcome rather than by the evidence, we and our colleagues on the Court of Appeals have vacated that decision. In 1998, the Court of Appeals, in Boswell v. Boswell, 352 Md. 204 (1998), for example, reaffirmed the notion that a trial judge, applying the best interest standard to a visitation determination, must not let their personal beliefs or biases pertaining to a parent’s lifestyle choice interfere in custodial decision-making, but rather, should only consider how such a choice adversely impacts the best interest of a child. In Boswell, the trial judge, without request from either party, placed limitations on the children’s visitation with their father based upon his cohabitating with a same-sex partner, reasoning: [W]here there is a . . . paramour involved. . . . I have often, time and time again, restricted visitation.

I think that’s only appropriate. *** [I will hold] down the . . . visitations of both the weekend and Wednesday and [restrict] during this period any overnight visitation. Clearly the Court is convinced that . . . there is a relationship, at least up until this time, and no concern to change before this time, that [the father] is sleeping with . . . another person without the cloak of a marital relationship. *** [T]here will be no visitation in the home where there is . . . [the father’s partner]. Or any other situation that goes to a relationship that isn’t condoned. 5 Id. at 212 (emphasis removed) (alterations in original). In addressing the father, the trial judge continued: [T]here may come a time when you would elect to have someone else stay at the home with you, perhaps a female companion or another male companion, but my order is that the children are not to visit you under those circumstances.

So if it means taking them to some other place, some neutral place, then that’s the Order of this Court, and that’s a strict order [until] it is clear to me that we’ll have no situation where you have a live-in companion. Id. (emphasis removed). The visitation order entered by the trial judge prohibited any overnight visitation and visitation with the children in the presence of “anyone having homosexual tendencies or such persuasions, male or female, or with anyone that the father may be living with in a non-marital relationship.” Id. at 211 .

We, thereafter, vacated the decision of the circuit court based upon the judge’s failure to make any factual findings to support its assumption that the children would be harmed by visiting their father “in the company of homosexuals.” Boswell v. Boswell, 118 Md. App. 1, 34 (1997), aff’d, 352 Md. 204 (1998). The Court of Appeals affirmed our decision and expressed its disapproval of the fact that the trial court had “acted on its own initiative, seemingly influenced by its own biases and belief that” the father’s non-marital relationship with his same-sex partner was “‘inappropriate.’” Boswell, 352 Md. at 238 . The Court explained its reasoning: In all family law disputes involving children, the best interests of the child standard is always the starting—and ending—point. We see no reason to deviate from this standard here.

When we narrow the focus to proceedings involving proposed visitation restrictions in the presence of non-marital partners, courts also are to examine whether the child’s health and welfare is being harmed. Once a finding of adverse impact on the child is made, the trial court must then find a nexus between the child’s emotional and/or physical harm and the contact with the non-marital partner. If no clear, direct 6 connection is found, then the non-custodial parent’s visitation rights cannot be restricted. We want to emphasize that the above formulation does not require a court to sit idly by and wait until a child is actually harmed by liberal unrestricted visitation.

If there is sound evidence demonstrating that a child is likely to be harmed down the road, but there is no present concrete finding of harm, a court may still consider a child’s future best interests and restrict visitation. The need for a factual finding of harm to the child requires that the court focus on evidence-based factors and not on stereotypical presumptions of future harm. Therefore, before a trial court restricts the non-custodial parent’s visitation, it must make specific factual findings based on sound evidence in the record. If the trial court does not make these factual findings, instead basing its ruling on personal bias or stereotypical beliefs, then such findings may be clearly erroneous and the order may be reversed.

In addition, if a trial court relies on abstract presumptions, rather than sound principles of law, an abuse of discretion may be found. Id. at 236–37. See also North v. North, 102 Md. App. 1 (1994) (holding that trial court abused its discretion in restricting HIV-positive, homosexual parent’s visitation rights to weekend daylight hours to prevent him from exposing children to his lifestyle); Bienenfeld, 91 Md. App. at 508 (holding that a court in a custody proceeding may only consider evidence of religious views or practices of the party seeking custody to the extent that such view or practices bear upon the physical or emotional welfare of the child). But see Levitsky v. Levitsky, 231 Md. 388, 400 (1963) (remanding decision of circuit court granting mother custody of children, concluding that her religious views might bar her from having custody of the children where, based upon her religious beliefs, she refused to permit her son to have blood transfusions which medical professionals deemed essential to save his life). 7 Other state courts also have recognized that a judge’s personal beliefs or biases have no place in a custody decision, absent a showing that the lifestyle choice of a parent had, or will have, an adverse impact on the child’s interests.

The intermediate appellate court of Ohio, in Whaley v. Whaley, 399 N.E.2d 1270 (Ohio Ct. App. 1978), held that a change in custody from the mother to the father was improper, where it was ordered to punish the mother for conduct the court considered morally wrong, including her relationship with a married man who was separated from his wife, despite the fact that the record was devoid of any showing of the need for such a change. The court explained: The judge’s decision demonstrates that the change in custody was ordered to punish Mrs. Whaley for conduct the court considered morally wrong. This is not the standard in the State of Ohio. The state is concerned with the child’s welfare.

A child must not be used to punish or reward conduct a particular judge might condemn or condone. *** The [standard] that immoral conduct must be shown to have a direct or probable adverse impact on the welfare of the child in order to justify a change of custody, we believe to be the rule in Ohio. . . . While a court should not inquire into competing moral value systems, it can recognize that such moral standards do exist, and that children are harmed by being raised in immoral surroundings. [Under a direct adverse impact] standard the court looks not to moral systems, but to the interests of the child. A court need not classify certain conduct as a “wicked sin” or “mere indiscretion”; rather, it looks only to the effect, if any, the conduct has on the child. Id. at 1273–75 (citations omitted).

The Ohio Court of Appeals also, in Rowe v. Franklin, 663 N.E.2d 955 , 956–57 (Ohio Ct. App.), cert. denied, 74 Ohio St.3d 1464 (1995), utilizing a standard requiring a nexus between the conduct of a parent and a deleterious effect on the child, abrogated a 8 trial court’s judgment which awarded the father physical custody of a child, a determination that the child’s mother sought to reverse. In Rowe, the mother sought to permanently relocate her son from Ohio to Kentucky, where the two had temporarily resided, based upon her position as a part-time pilot with the United States Army. Id. at 956. While in Kentucky, the mother had developed a relationship with a man who was married but separated from his wife, whereupon she became pregnant, thereafter electing to enroll in law school.

Id. In making his factual findings pursuant to the custody factors relevant in Ohio, similar to those in Maryland, the trial judge had expressed concern over the mother’s relationship with “her male companion and the lifestyle choices” she made concerning her career. Id. at 957. The appellate court reversed, stating that: From our review of the record, the trial court’s findings of fact and conclusions of law reflect that it abused its discretion . . . because we are convinced that the trial court did not consider in its analysis of the child’s best interests whether the mother’s conduct had a direct adverse impact on the child when it transferred custody and designated the father as custodial parent.

We find significant the trial court’s apparent judgmental attitude toward the mother’s life choices. Id. at 958. The Court further explained that an evaluation of a child’s best interests does not include a critique of a parent’s lifestyle choices insofar as it does not impact the well- being of the child: Concern for a child’s well-being or best interests does not, however, provide the court carte blanche to judge the rights and lifestyles of parents by nonstatutory codes of moral or social values. Although a court is not obligated to wear blinders as to a parent’s lifestyle and/or morals, including sexual conduct, any state interest in competing lifestyles and accompanying moral values which affect child custody would most equitably be served if limited to a determination of the direct or probable effect of parental conduct on the physical, mental, emotional, and social development of the child, as opposed to a determination of which lifestyle choices made by a parent are 9 “correct.” In a society as diverse as the one in which we live a court is ill- equipped to determine which of such choices are “correct.” Id. at 956–57 (citing Whaley, 399 N.E.2d at 1275 ).

See also Marko v. Marko, 816 N.W.2d 820, 829 (S.D. 2012) (stating that “[w]hen a court finds that a parent’s lifestyle directly and adversely impacts the children, that parent’s behaviors become relevant to the court’s custody determination.”). The California Supreme Court, in Burchard v. Garay, 724 P.2d 486 , 539–40 (Cal. 1986), addressed the impact of a woman working on the care of a child who was nearly three-years old and held that it was an abuse of discretion for a trial court to award the father custody based upon an unsupported assumption that a working mother could not provide adequate care, especially when the mother had been the “primary caregiver.”2 The 2 Interestingly, in a 2018 article, Andrea L. Miller, of the Department of Psychology, University of Illinois at Urbana-Champaign, discussed her findings from a study regarding whether the “substantial subject-matter and decision-making expertise” that judges possess insulated them from being “influenced by their ideas about traditional gender roles to the same extent as laypeople.” Andrea L. Miller, Expertise Fails to Attenuate Gendered Biases in Judicial Decision-Making, 10(2) SOC. PSYCHOL. & PERSONALITY SCI. 227 (2019). The results of her study supported the hypothesis “that judges’ decision-making was substantially influenced by gender ideology.” Id. at 232.

She found that “[j]udges’ support for traditional gender roles for men and women predicted gender disparities in both a child custody case and an employment discrimination case” and that decision-making expertise of judges “does not buffer them against the biasing influence of gender ideology.” Id. Dr. Miller also posited that the results, “also raise the possibility that expertise may open the door for greater bias in some cases[,]” id., which may include the perception “that women who work are bad mothers[,]” id. at 227. See also Richard A. Warshak, Gender Bias in Child Custody Decisions, 34 FAM. & COUNCIL. CTS.

REV. 396, 398 (1996) (“Mothers who pursue a career are punished for shirking their maternal responsibilities, whereas fathers are rewarded for providing slightly more than minimal assistance in child rearing.”); Susan Beth Jacobs, Note and Comment, The Hidden Gender Bias Behind “The Best Interest of the Child” Standard in Custody Decisions, 13 GA. ST. U. L. REV. 845 (1997) (“Instead of safeguarding the psychological and physical welfare of the child, hidden gender bias can result in a custody decision that is not in the best interest of the child.”). 10 bases for the lower court’s award to the father rested on his better financial position and the fact that he did not have to employ babysitters because he was married, according to the opinion of the appellate court: Applying the “best interests” test, [the trial court] awarded custody to [the father]. Its decision appears to be based upon three considerations.

The first is that [the father] is financially better off—he has greater job stability, owns his own home, and is “better equipped economically . . . to give constant care to the minor child and cope with his continuing needs.” The second is that [the father] has remarried, and he “and the stepmother can provide constant care for the minor child and keep him on a regular schedule without resorting to other caretakers”; [the mother], on the other hand, must rely upon babysitters and day care centers while she works and studies [to become a registered nurse]. Finally, the court referred to [the father] providing the mother with visitation, an indirect reference to [the mother’s] unwillingness to permit [the father] visitation. Id. at 487–88. The Court, although finding that the standard for custody had been articulated as the best interest of the child, concluded that the application of that standard had been skewed: The court’s reliance upon the relative economic position of the parties is impermissible; the purpose of child support awards is to ensure that the spouse otherwise best fit for custody receives adequate funds for the support of the child.

Its reliance upon the asserted superiority of [the father’s] child care arrangement suggests an insensitivity to the role of working parents. And all of the factors cited by the trial court together weigh less to our mind than a matter it did not discuss—the importance of continuity and stability in custody arrangements. We therefore reverse the order of the trial court. Id. at 488.

The Court further explained how the trial court had abused its discretion in awarding the father physical custody of the three-year old child because the lower court had failed to assess the relationship between mother and child, but merely relied on an “assumption” that a working woman cannot care for her child: 11 The trial court’s decision referred to [the father’s] better economic position, and to matters such as home ownership and ability to provide a more “wholesome environment” which reflect economic advantage. But comparative income or economic advantage is not a permissible basis for a custody award. “[T]here is no basis for assuming a correlation between wealth and good parenting or wealth and happiness.” If in fact the custodial parent’s income is insufficient to provide a proper care for the child, the remedy is to award child support, not to take away custody. The court also referred to the fact that [the mother] worked and had to place the child in day care, while [the father’s] new wife could care for the child in their home. But in an era when over 50 percent of mothers and almost 80 percent of divorced mothers work, the courts must not presume that a working mother is a less satisfactory parent or less fully committed to the care of her child.

A custody determination must be based upon a true assessment of the emotional bonds between parent and child, upon an inquiry into “the heart of the parent-child relationship . . . the ethical, emotional, and intellectual guidance the parent gives the child throughout his formative years, and often beyond.” It must reflect also a factual determination of how best to provide continuity of attention, nurturing, and care. It cannot be based on an assumption, unsupported by scientific evidence, that a working mother cannot provide such care—an assumption particularly unfair when, as here, the mother has in fact been the primary caregiver. *** The essence of the court’s decision is simply that care by a mother who, because of work and study, must entrust the child to daycare centers and babysitters, is per se inferior to care by a father who also works, but can leave the child with a stepmother at home. For the reasons we have explained, this reasoning is not a suitable basis for a custody order. Id. at 491–92 (citations and footnotes omitted).

The Court also took issue with the trial court’s finding that the father was “better equipped psychologically” to care for the child, based upon the mother’s past emotional problems, because the court failed also to consider the father’s conduct which had not served as “a model of emotional maturity.” Id. at 492. The Court, finally, concluded that, “[a]ll of these grounds, however, are insignificant compared to the fact that” the mother “has been the primary caretaker for the 12 child from birth to the date of the trial court hearing, that no serious deficiency in her care has been proven, and that [the child], under her care, has become a happy, healthy, well- adjusted child.” Id. at 492–93 (footnote omitted). It made “clear that in deciding the issue of custody the court cannot base its decision upon the relative economic position of the parties or upon any assumption that the care afforded a child by single, working parents is inferior.” Id. at 493; see also Dempsey v. Dempsey, 292 N.W.2d 549, 554 (Mich. Ct. App. 1980) (reversing custody decision of trial court where it awarded custody of three children to the father because he had a full-time job and could maintain a family home, even though he had spent little time with his family and planned to have a neighbor, a sister-in-law, and three other women provide child care in his absence).

Past Conduct of a Parent Furthermore, when evaluating what is in the best interest of a child, the determinative factor “is what appears to be in the welfare of the children at the time of the [custody] hearing.” Raible v. Raible, 242 Md. 586, 594 (1966) (emphasis added). An evaluation of a parent’s past conduct is only relevant insofar as it is predictive of future behavior and its effect on the child. Id. (holding it was not in the best interest of the children to terminate physical custody of mother who had been involved romantically with a married man, after her divorce, and had ceased the conduct at issue well before the custody hearing).

In Boswell, supra, 352 Md. at 237 , the Court of Appeals also stated that any potential harm stemming from a parent’s lifestyle choice does not necessarily have to be present at the time of a visitation, or custody, determination in order to be considered in the best interest calculus; rather, a court may consider a child’s future best interests, but 13 must make factual findings of harm to the child that requires the court to focus on evidence- based factors. Generally, past conduct is raised in custody or termination of parental rights cases where neglect or abuse has been alleged and the previously abusive or neglectful parent has the burden of proving that the past conduct will not likely be repeated. In re Adoption of Cadence B., 417 Md. 146, 158 (2010); see also In re Yve S., 373 Md. 551, 587 (2003). FACTUAL BACKGROUND In the present case, Muzaffar Suleymanov of Hagerstown, Maryland, on January 4, 2017, filed a petition for custody of nine-month old child, A.,3 that he had fathered with Natella Azizova, then of Alpharetta, Georgia.

On January 23, 2017, Mother filed a counter- complaint for custody, requesting that she be awarded sole legal and physical custody of A. and that any access awarded to Father with the child be supervised. On May 7, 2017, a Family Magistrate of the Circuit Court for Washington County heard the matter, and, thereafter, issued Proposed Findings and Recommendations, which recommended that mother should be granted sole legal custody and primary physical custody of A., while providing Father with monthly week-long visitation rights. In so recommending, after hearing testimony from the parties and their respective witnesses, the magistrate made the following findings based upon his credibility determinations: Plaintiff, Muzaffar Suleymanov, and Defendant, Natella Azizova, are the parents of a young child [A.], born [in March of 2016]. The parties lived together until late December 2016.

On or about December 27, 2016, the 3 Because the child is a minor, we refer to her by the initial of her first name. 14 Defendant, along with the minor child, left for Georgia[4] for an approximate eight (8) day vacation with Defendant’s family. Since traveling to Georgia, Defendant and [A. have] remained living with her family [in Georgia]. Mr. Suleymanov remains living at his mother’s home [in Hagerstown, Maryland], the home in which the parties resided until late December. Mr. Suleymanov has not had contact with the child since late December.

Plaintiff and Defendant lived with Plaintiff’s mother in [Hagerstown]. The parties testified that they are married, but not married in a state sanctioned ceremony. Mr. Suleymanov works for a company owned by his mother[.] Mr. Suleymanov testified that he dispatches trucks from home, working from about 9:00 a.m. until 6:00 or 7:00 p.m., Monday through Friday. Mr. Suleymanov testified that he earns $1,400.00 per month.

The parties began living together in June 2015. The child was born on March 25, 2016. One piece of uncontroverted testimony is that Mr. Suleymanov traveled via air transportation twice a month for approximately a year as he and the Defendant dated. It is not clear how the parties met.

Ms. Azizova testified that Mr. Suleymanov kicked her out of the home in mid-October, 2016. Ms. Azizova stayed in the local Days Inn for one (1) night. Her cousin from Philadelphia came and picked her up and she and the child went to Philadelphia for a few days. She testified that her parents came from Georgia and then brought her back to the Suleymanov home [] where she continued to live until the end of December, 2016.

The other uncontroverted testimony is that the intention in late December was to spend approximately eight (8) days in Georgia visiting Defendant’s family. The evidence shows that the Defendant purchased a round-trip ticket. Mr. Suleymanov and his mother drove Ms. Azizova and the child to the airport. Ms. Azizova testified that approximately two (2) days after arriving in Georgia that Mr. Suleymanov packed her personal belongings, the child’s clothing, and furniture and shipped the same to Georgia.

Ms. Azizova testified that this action was not requested by her, but rather initiated by Mr. Suleymanov. [T]he Household Goods Bill of Lading, includes a listing of the child’s belongings. One might ask why Mr. Suleymanov would ship the child’s belongings to Ms. Azizova, a mother he contends took little care of the child. In June 2016, there was a dispute between the parties, Ms. Azizova testified that Mr. Suleymanov cut-off a credit card that she carried. In late October or November, Ms. Azizova began working at Best Buy on a part- time basis, approximately twenty-four (24) hours per week.

Additionally, she had started school at Hagerstown Community College, taking three (3) classes and being in school from approximately 12:00 p.m. until 7:00 p.m., 4 Georgia, as used here, refers to the State, where Mother and A. resided upon leaving Maryland rather than the Mother’s country-of-origin, Georgia of the Caucasus region of Eurasia. 15 three (3) days per week. Mr. Suleymanov testified that he and his mother took care of the child while Ms. Azizova was in school and/or working. Mr. Suleymanov did not want Ms. Azizova to work. Ms. Azizova testified that she needed to work so that she would have money for the child.

Mr. Suleymanov countered that between his funds and his mother’s assistance, the family and the child had all they needed. Mrs. Suleymanova, Mr. Suleymanov’s mother testified that she works 3 to 4 nights per week as a nurse from 10:30 p.m. to 7:30 a.m. Her work schedule and her son’s work schedule in the home would seem to indicate that they would share the responsibility of taking care of the child while Ms. Azizova was in school and/or working. Ms. Azizova testified that Mr. Suleymanov seldom took care of the child, telling her it was the mother’s job.

(alterations added). The magistrate found that the parties had had a volatile relationship, that the paternal grandmother had cared for A. when Mother was not home, but that Mother should have primary physical custody of A.: Here, both parties contend that the other physically abused him or her. Both parties denied that such behavior was exhibited to the other party so the credibility issue is a complete wash and the Magistrate would find that both parties are less than forthright about their behavior. It is clear that this relationship has turned very volatile.

It is easy to find that both of these parties have engaged in physical and verbal abuse of the other. The home life appears to be very unhealthy for the parties and the child. Although Mr. Suleymanov suggests that he cared for the child during the day, that is difficult to manage when you are attentive to your work. The conclusion might be that Mrs. Suleymanov[a] may have provided care when Ms. Azizova was out of the home.

The current situation where Mr. Suleymanov lives in Hagerstown and Ms. Azizova lives in Georgia makes for a difficult arrangement for custody and visitation. The child is but 13 months old. The distance is substantial and there is no workable relationship between the parents. Ms. Azizova expresses concern that the child might be injured/abused absent supervised visitation in Georgia.

There is no credible evidence that Mr. Suleymanov has harmed the child. Although Mr. Suleymanov’s care of his daughter may be less than his testimony suggests, with Ms. Azizova attending college and working, there are certainly times when Mr. Suleymanov and/or his mother were caring for [A.]. The recommendation will be that Ms. Azizova has sole legal custody and primary physical custody of the minor child. 16 The magistrate did recommend that Mr. Suleymanov receive visitation rights consisting of one week per month with A. Father subsequently filed exceptions to the magistrate’s Proposed Findings and Recommendations on May 19, 2017, to which Mother replied. On August 11, 2017, the circuit court entered a pendente lite order memorializing an agreement between the parties that granted Mother temporary sole legal custody and primary physical custody of A. until a “decision on the merits could be made.” On January 16 and 17, 2018, as well as March 16, 2018, the matter came before a trial judge in the Circuit Court for Washington County.5 The trial court entered an order on August 28, 2018, awarding Father primary physical custody and joint legal custody with Mother, with Father having tie-breaking authority.

The order also provided Mother with visitation: Beginning August 19, 2018, the parties shall have an alternating schedule consisting of four (4) consecutive weeks with Mr. Suleymanov followed by two (2) consecutive weeks with Ms. Azizova. This alternating schedule shall continue until September 2021, at which time the minor child shall be mandated to begin school; it is further ORDERED that once school begins in September, 2021, the child shall be in the custody of Mr. Suleymanov during the school year. Ms. Azizova shall have visitation during the minor child’s winter break, spring break, and for two (2) months of summer vacation[.] 5 Over the course of the three-day trial, the following individuals testified: Muzaffar Suleymanov, Father; Natella Azizova, Mother; Aynura Muradova, Father’s cousin; Rashid Suleymanov, Father’s father; Gulnara Suleymanova, Father’s