Burak v. Burak

Nazarian, J. After a five-day custody merits hearing, the Circuit Court for Montgomery County granted physical and legal custody of the sole minor child (“Child”) of Natasha Burak (“Wife”) and Mark Burak (“Husband”) to Husband’s parents (individually, ²⁴⁸ “Grandfather” and “Grandmother,” and, collectively, the “Grandparents”). After a merits hearing relating to property distribution, the circuit court determined that money the Grandparents had contributed toward the purchase of Wife and Husband’s marital home was a gift conditioned on Husband and Wife’s continued marriage and use of the home, for the sole benefit of the Child, and because the divorce violated that condition, the Grandparents were entitled to recover those funds. After a child support hearing, the court ordered Husband and Wife to pay child support to the Grandparents. Wife challenges all of these decisions; Husband does not, and apparently has decided to align his interests with his parents’.

We dismiss one of Wife’s challenges for failure to provide a transcript, reverse the judgment in favor of the Grandparents as to the marital home proceeds, and otherwise affirm. I. BACKGROUND Husband and Wife were married on October 7, 2006, and Child was born on June 24, 2008. Husband testified at the custody hearing that one week before the wedding, Wife told him that she had been diagnosed with multiple personality disorder. 1 On June 20, 2011, Husband and Wife, using $131,000 from the Grandparents as a down payment, purchased a $355,000 home in Silver Spring. During the marriage, Husband and Wife were involved in a polyamorous relationship with a woman we’ll call M. 2 Husband and Wife met M in late 2008 when they all lived in the same apartment building.

Husband testified that about two weeks ²⁴⁹ after meeting M, he and Wife talked to her about beginning a sexual relationship with her. M testified that as part of this discussion, Wife told her that she had dissociative identity-disorder or multiple personality disorder. Wife, however, testified that the sexual relationship with M started “[b]y [Husband] introducing it.” Husband, Wife, and M met “[a] couple ... to a handful [of] times a month” until M moved into the family home in 2012. From September 2012 through February 2013, Husband, Wife, and M participated in counseling because Husband wanted M to stay in the house while Wife wanted M to leave.

The sexual relationship between M and Wife had ended in December 2012. Wife testified at the custody hearing that she felt coerced by Husband, but offered no other evidence that Husband was coercing or influencing her to have a relationship with M. Husband and M testified that Husband never forced Wife to have a sexual relationship with M. During their marriage, Husband and Wife smoked marijuana and used several other drugs together and with M. They scheduled their drug use to allow Husband and Wife to coordinate care for the Child by the Grandparents at the Grandparents’ home. These sessions occurred “[a]nywhere from every other weekend to once a month, to sometimes it would be a few months.” Wife testified that she only used drugs at Husband’s insistence, but offered no other evidence that Husband “coerced” or “influenced” her. Wife kept a calendar that indicated when she was “tripping.” Both Husband and M testified that Wife was never forced to use drugs, and Husband testified that it was Wife’s idea that they use cocaine.

A. The Grandparents The Grandparents are both retired and live in a home with a room for Child. The Grandparents have been “heavily involved” in Child’s life—Child spent many weekends and a significant amount of weekday time with the Grandparents, including when his parents were using drugs. As an infant, ²⁵⁰ Child spent three days each week and occasional weekends at the Grandparents’ home. When he was older, Child spent two to four days or nights per week at the Grandparents’ home.

Husband also testified that Wife asked that Child go to the Grandparents’ when she would otherwise be left alone with him and that this “became more routine” during their marriage. In addition, the Grandparents frequently took Child to the doctor and the dentist so that Husband and Wife would not have to take time off from work, and they arranged for Child to attend school programs and recreational activities. The Grandparents took Child to church on Sundays when he was with them. According to Wife’s testimony, the Grandparents “[ha]ve tried to act as parents” to Child.

B. Husband And Wife’s Separation Husband and Wife’s relationship became strained in 2012 as a result of frequent fights that included profane name-calling and screaming at each other. Both Husband and Wife testified about incidents leading to their separation. Wife testified that Husband became physically violent and threatened to kill her during a trip to King’s Dominion with M. Husband countered that he hit Wife because she intentionally slammed his arm with the car door and that he did not ever threaten to kill her in front of Child. On May 30, 2013, after these incidents, Husband and Wife separated and Wife sought and received a protective order against Husband.

While the restraining order was in effect, Wife voluntarily arranged visitation with the Grandparents so that Husband could see Child on a weekly basis under the Grandparents’ supervision. After the separation, Wife stayed in the marital home with Child, and they lived with two different men shortly after the separation. From early July 2014 until at least the time of the custody hearing (which began on September 15, 2014), Wife and Child lived with Wife’s daughter, Wife’s daughter’s adoptive mother, father, and older sister (the “Ks”), four dogs, and ²⁵¹ twenty guinea pigs. The Ks did not contribute toward the mortgage or household expenses during the time that they lived in the marital home.

On July 11, 2013, Wife filed a Complaint for Absolute Divorce that sought sole physical and legal custody of Child, child support, and other relief. 3 Husband filed a counter-complaint on August 27, 2013 that requested, among other things, an absolute divorce, custody of Child, and child support. They reached a pendente lite settlement that provided, among other things, that Wife would have physical custody of Child, Husband would have visitation with Child under the supervision of the Grandparents and continue paying monthly child support to Wife in the amount of $500, and both Husband and Wife would be subject to random drug testing. Husband paid child support on time until August 2014. C. The Grandparents’ Motion For Permissive Intervention On April 24, 2014, the Grandparents filed a Motion for Permissive Intervention relating to Child’s legal and residential custody and a Complaint for Custody.

On May 21, 2014, Wife filed a Motion to Strike both. The trial court granted the Grandparents’ Motion for Permissive Intervention on July 14, 2014. D. Child’s Crisis Center Referral Around May 2014, Child began exhibiting behavior issues at school. He became upset, refused to leave the classroom, and pushed desks.

Child’s behavioral issues continued during summer camp, around the same time that the Ks moved into the marital home with Wife and Child. During the early part of the 2014 school year, Child became frustrated and angry and sometimes left his classroom and the school building. In one instance on September 4, 2014, Child ²⁵² hit and kicked the assistant principal and told the school counselor and assistant principal that he was so angry that he wanted to blow up the school. Both Grandmother and Wife arrived at the school after this incident; Grandmother had been scheduled to pick up Child for his visitation with Husband, and the school had called Wife.

The principal spoke to Wife about the situation in a conference room while Grandmother sat outside because Wife did not want the principal to speak with Grandmother. The principal advised Wife that the school was referring Child to the Montgomery County Crisis Center (the “Crisis Center”), and strongly encouraged Wife to take Child there. The principal also informed Wife that the school guidance counselor had the Crisis Center referral paperwork. When the principal finished talking to Wife, Child left with Grandmother and Wife met with the guidance counselor.

The guidance counselor gave Wife the form referring Child to the Crisis Center and told her to take Child as soon as she could, although Child could return to school even if the Crisis Center had not completed the referral form. Husband’s attorney—not Wife or the personnel from the school—informed Husband about the Crisis Center referral. Husband called Grandmother and learned that Grandmother had picked up Child and that Wife had not taken Child to the Crisis Center. Husband called his attorney to determine what he should do with Child, and his attorney told him to take Child to the Crisis Center.

Within forty-five minutes of learning about the referral, Husband and Grandmother took Child to the Crisis Center. 4 Wife, meanwhile, attended Child’s back-to-school night. After the incident, Wife never returned the form she received from the guidance counselor to the school, and she kept Child at home for several days after the incident. ²⁵³ After the incident, Child began receiving therapy through his school. Wife also testified that, although Child did not receive additional individual counseling, she did seek counseling for him. E. Child Custody Merits Hearing On the first day of the custody hearing, Wife’s counsel called the Court Evaluator to testify about her February 20, 2014 oral report. 5 The Court Evaluator testified about Husband’s drug use and expressed concern about Husband’s alleged history of sexually abusing children, including his sister and daughter from an earlier marriage.

The Court Evaluator testified that she had concluded in her oral report “[t]hat it was unlikely [Husband and Wife] would be able to successfully cooperate and communicate” and recommended that Wife have primary residential and sole legal custody of Child. During cross-examination, the Court Evaluator explained that she recommended that Wife have custody of Child because she “felt [Wife] at least expressed the desire to have primary custody and she was in therapy.” The Court Evaluator testified that Wife lied to her about “the drug test results, because she told [the Court Evaluator] that she had not used marijuana since ... the parents separated. And she did test positive for marijuana [after the pendente lite hearing on January 14, 2014].” The Evaluator also testified about the Grandparents’ relationship with Child, saying that they were “very important in [Child]’s life,” were “intimately involved in a lot of the details of [Child]’s ... life,” and “had excellent accommodations for [Child] in their home.” The Evaluator also expressed “serious concerns” about both Husband’s and Wife’s judgment: ²⁵⁴ [B]oth [Husband and Wife], and the grandparents, and others, told me about ways in which both parents relied on the grandparents when they were ... with [M], when they were having arguments, when they were using drugs together, they often told me, but [Child] wasn’t adversely affected, because he was with his grandparents. He was with them almost every other weekend, although not on a regular set schedule.

And other times the[ Grandparents] were going to the school. They were chaperoning and volunteering at the school. They were almost functioning as the parents. The Evaluator expressed two further concerns: “that [she] didn’t see ... more signs of attachment and bonding between [Child] and either parent,” and that either or both parents would use drugs again.

The Evaluator also felt that Child’s bond with the Grandparents matched the bond he had with his parents. At trial, Wife testified about how she cared for Child during the time between the pendente lite hearing and the custody merits hearing. 6 During her cross-examination, Wife testified about a calendar containing “everything that was going on ... at that time [2013],” including notations regarding her drug usage and sexual relations with M, Husband, and another man, but claimed that she could not remember the meaning of her notations on the calendar. Wife also could not remember any specific threats Husband made against her. When Husband’s counsel asked Wife about emails she had written in which she referred to her alternate personalities, Wife responded that she was unsure if she wrote them “because [Husband] had access to the e-mail account,” but that if she did write them, that she would have referred to herself in the third person.

In response to questions from the Grandparents’ attorney, Wife testified that Grandmother would not “purposely” let harm come to Child or neglect him, but that she had concerns about the Grandparents’ ability to care for ²⁵⁵ Child; she could not, however, “describe anything that may or may not be there” because she was “not made aware of what happens when [Child]’s [at the Grandparents’] for visitation.” With regard to her drug use at the time of the custody merits hearing, Wife originally answered the judge’s question by saying that she was not clean from drugs, but quickly changed her answer to say that she was. Husband testified about his relationships with Wife and Child. He testified that he had tested negative for each of the administered drug tests and did not plan to use drugs in the future. He expressed concern about Wife’s ability to care for Child and cited Child’s recent behavioral issues and the Crisis Center referral.

And Husband offered his belief that Wife was not fit and proper to have custody of Child, but that the Grandparents were. M testified about her relationship with Husband and Wife. According to M, Wife was capable of becoming violent or aggressive toward Child: It would be some occasional times during the, usually weekend mornings, where I would wake up and I would see [Wife] either yelling at [Child] or screaming, or whatever. And it didn’t seem like it was such a big deal.

It might have been over, like, a yogurt or going outside, or forgetting to, you know, throw recycling away. I mean, a mountain out of a molehill it seemed to be. And I would ask about it later, and [Wife] would tell me, well that, that was Morgan[, one of Wife’s alternate personalities,] and Morgan was just starting to get really frustrated with him. M recounted that Wife and Child “get very frustrated with each other very easily” and that Wife did not like to care for Child alone.

When asked whether Wife should have custody of Child, M said no: I don’t believe that [Wife] can fully take care of herself, for starters. I have seen a marked difference in [Child]’s mood and behavior. I know that he was supposed to be in therapy, and that he’s not. I know that the school’s had to call in for, he’s been sent to Crisis Center.

I, I’m, I’m concerned about ²⁵⁶ him. I don’t think that the, the family, there’s a family now that’s living with them. And I [k]now some about that family and their lifestyle and the cleanliness and lack of cleanliness and the hoarding lifestyle that they’ve brought with them. I just, I, I don’t think it’s appropriate.

In contrast, M answered that she believed that the Grandparents were the fit and proper people to have full custody of Child because “[t]hey have the time, they have the patience, they have the home that he’s been living in about half, half the time for most of his life. They know his medical history. They’ve been to his school functions. I mean they, they, they were in it sometimes more often than the parents were.” Grandfather testified about his relationship with Child, and explained that he and Grandmother were seeking custody because they “ha[d] very grave concerns about the ability of either [Husband] or [Wife] to bring up [Child] in a environment that will provide for him the opportunities that a six year old deserves.... [W]e have to rescue him from a lot of the behaviors that have been described.” Grandfather expressed the belief that it would be in Child’s best interests to be in the Grandparents’ primary care and that both Grandparents were fit and proper persons to have custody of Child.

Grandfather opined as well that Child’s behavior would improve if he was removed from Wife’s custody. Grandmother also expressed that she and Grandfather were fit and proper persons to have custody of Child for several reasons: Well, first of all, we love [Child] very, very much. And second of all, the preponderance of testimony in this courtroom today, much of which we were unaware, has made us firmly believe that neither [Wife] nor [Husband] is prepared financially, socially, morally, to raise [Child] in a[n] environment that will help to be the person that he has the potential to be. [Grandfather] and I are caretakers. [Grandfather’s father was bedridden for 18 and a half years. The first 18 and a half years of our marriage, we drove every third weekend to New Jersey to help his mother care for his ²⁵⁷ father at home.

It mattered not what was going on, what invitation we had, what party was going on, we went. We’ve cared for [Grandfather's mother in our home, simultaneously with [Child]. She had a litany of ailments .... But we felt that it was an important thing for us to do.

We are both caregivers. Grandmother also expressed concern about Child’s social development if Wife were granted custody, about Wife’s ability to care for Child alone for long periods of time, and about Wife’s handling of the Crisis Center referral. Other non-family witnesses also offered observations. The Grandparents’ next-door neighbor testified that the Grandparents’ relationship with Child was more like a parent’s relationship than a grandparent’s, and she too opined that the Grandparents would be fit and proper persons to have custody of Child.

Same for a member of Grandparents’ church. Child’s school principal and guidance counselor testified about Child’s behavior at school, including the September 4, 2014 Crisis Center referral incident. Husband also called a clinical psychologist who had counseled Husband, Wife, and M and she testified about the emotional amplitude of the unconventional relationship, which included yelling, arguing loudly, and “going at it in a volatile manner.” At the conclusion of the five-day custody trial, on September 19, 2014, the court, in an oral ruling, granted physical and legal custody of Child to the Grandparents. F. Interim Orders The court followed its oral custody ruling with an interim order dated September 24, 2014 restating its finding that “neither [Wife] nor [Husband is] fit and proper to have custody of the minor child” and the presence of “extraordinary circumstances ... that are significantly detrimental to the minor child if the child were to remain in the custody of [Wife].” In addition, the court found “that it [wa]s in the best interest of [Child] to award sole custody to the [Grandparents]” and “that the [Grandparents] are fit and proper persons to have custody of [Child].” ²⁵⁸ On October 7, 2014, the Grandparents filed an Emergency Motion to Modify and Limit [Wife]’s Access to Minor Child.

After a hearing on the motion, the court, in a second interim order, granted the Motion and prohibited overnight visits with Wife. In a perhaps optimistically titled Final Order dated November 25, 2014, the court, among other things, ordered Wife to pay Husband “$9,628.38 as compensation for his half of the expenses he paid towards the maintenance of the family home from November 2013 through October 2014.” On December 24, 2014, Wife filed a Motion for Partial Reconsideration of the Final Order and Motion for Expenses She Paid on [Hus-bandj’s Behalf Towards the Maintenance of the Family Home, and the court denied that motion on June 15, 2015. G. The Grandparents’ Motion For Child Support In the meantime, the Grandparents filed a Motion for Child Support. A magistrate held a hearing on March 11, 2015 and, on March 24, 2015, recommended that the circuit court grant the motion.

On April 2, 2015, Wife filed exceptions to the recommendation, arguing, among other things, that the child support award was grossly excessive because it required Wife to pay nearly half of her gross salary and because the Grandparents are “extraordinarily wealthy.” The circuit court granted Grandparents’ Motion for Child Support in an order dated May 19, 2015 and denied Wife’s exceptions in an order dated May 21, 2015. H. Property Distribution Hearing Over Wife’s objection, the court permitted the Grandparents to intervene in the property distribution healing. At the end of the hearing, the court granted Husband and Wife an absolute divorce and incorporated (but didn’t merge) their voluntary separation and property settlement agreement, and entered an order to that effect on January 23, 2015. The court also found that the Grandparents were entitled to the first $131,000 of the proceeds from the sale of the marital home because they made a conditional loan of that amount to Husband and Wife for the purpose of allowing Child to grow ²⁵⁹ up in a safe and clean home environment.

The court entered an order to this effect on January 27, 2015. Wife filed a Motion for Partial Reconsideration on December 24, 2014, which the Grandparents opposed on January 7, 2015. The court took Wife’s Motion for Partial Reconsideration under advisement on January 20, 2015, and later denied it. Wife filed a timely appeal.

We will discuss additional facts below as necessary.

II

DISCUSSION Wife presents eight questions on appeal 7 that we have consolidated into five. First, Wife asserts that the court violated her “fundamental parental rights” under the United States and Maryland Constitutions when it granted custody of Child to the Grandparents and abused its discretion by denying her request for a continuance. Second, Wife asserts that the court ²⁶⁰ abused its discretion by soliciting expert testimony during a hearing in an “unorthodox manner” and, third, by permitting the Grandparents to intervene in the divorce property distribution hearing. Fourth, Wife argues that the court erred in awarding Husband “ ‘contributions made towards maintenance of the family home.” And finally, Wife challenges the order requiring her to pay child support to the Grandparents.

We review child custody determinations using three interrelated standards of review: When the appellate court scrutinizes factual findings, the clearly erroneous standard of [Rule 8-131(c) ] applies. [Second], if it appears that the [court] erred as to matters of law, further proceedings in the trial court will ordinarily be required unless the error is determined to be harmless. Finally, when the appellate court views the ultimate conclusion of the [court] founded upon sound legal principles and based upon factual findings that are not clearly erroneous, the [court’s] decision should be disturbed only if there has been a clear abuse of discretion. In re Yve S., 373 Md. 551, 586 , 819 A.2d 1030 (2003). We give “due regard ... to the opportunity of the lower court to judge the credibility of the witnesses.” Id. at 584 , 819 A.2d 1030 .

And we recognize that the trial court is vested broad discretion in making custody determinations: ²⁶¹ [I]t is within the sound discretion of the [trial court] to award custody according to the exigencies of each case, and ... a reviewing court may interfere with such a determination only on a clear showing of abuse of that discretion. Such broad discretion is vested in the [trial court judge] because only he sees the witnesses and the parties, hears the testimony, and has the opportunity to speak with the child; he is in a far better position than is an appellate court, which has only a cold record before it, to weigh the evidence and determine what disposition will best promote the welfare of the minor.” Id. at 585-86, 819 A.2d 1030 . “If there is any competent evidence to support the factual findings below, those findings cannot be held to be clearly erroneous.” Fuge v. Fuge, 146 Md.App. 142, 180 , 806 A.2d 716 (2002). An abuse of discretion occurs “where no reasonable person would take the view adopted by the [trial] court, or when the court acts without reference to any guiding rules or principles.” In re Adoption/Guardianship No. 3598, 347 Md. 295, 312 , 701 A.2d 110 (1997) (citations and internal quotation marks omitted). “An abuse of discretion may also be found where the ruling under consideration is clearly against the logic and effect of facts and inferences before the court, or when the ruling is violative of fact and logic.” Id. (citations and internal quotation marks omitted).

However, “where the [custody] order involves an interpretation and application of Maryland statutory and case law, our Court must determine whether the [circuit] court’s conclusions are ‘legally correct’ under a de novo standard of review.” Walter v. Gunter, 367 Md. 386, 391-92 , 788 A.2d 609 (2002). A. The Circuit Court Neither Violated Wife’s Constitutional Rights Nor Abused Its Discretion By Awarding The Grandparents Sole Legal and Physical Custody. The overriding goal in determining child custody is to serve the best interests of the child. Conover v. Conover, ²⁶² 450 Md. 51, 60 , 146 A.3d 433 (2016) (citing Taylor v. Taylor, 306 Md. 290, 303 , 508 A.2d 964 (1986) (“We emphasize that in any child custody case, the paramount concern is the best interest of the child ....

The best interest of the child is [ ] not considered as one of many factors, but as the objective to which virtually all other factors speak.”); Ross v. Hoffman, 280 Md. 172, 174-75 , 372 A.2d 582 (1977) (asserting that the “best interest standard is firmly entrenched in Maryland and is deemed to be of transcendent importance”)). At the same time, “[i]t is also well-established that the rights of parents to direct and govern the care, custody, and control of their children is a fundamental right protected by the Fourteenth Amendment of the United States Constitution.” Id. (citing Meyer v. Nebraska, 262 U.S. 390, 399 , 43 S.Ct. 625 , 67 L.Ed. 1042 (1923)); In re Samone H., 385 Md. 282, 300 , 869 A.2d 370 (2005) (stating that “[a] parent’s interest in raising a child is, no doubt, a fundamental right, recognized by the United States Supreme Court and this Court”). Normally, courts have only those competing interests to balance.

Here, though, there is a third—the interests of the intervening Grandparents. As third parties seeking custody, the Grandparents first must overcome the legal preference favoring Child’s parents. In re Rashawn H., 402 Md. 477, 495 , 937 A.2d 177 (2007); Koshko v. Haining, 398 Md. 404, 423 , 921 A.2d 171 (2007) (“As a natural incident of possessing this fundamental liberty interest, the [parents] are also entitled to the long-settled presumption that a parent’s decision regarding the custody or visitation of his or her child with third-parties is in the child’s best interest.” (citations omitted)); Monroe v. Monroe, 329 Md. 758 , 781 n.4, 621 A.2d 898 (1993) (“Where parents claim the custody of a child, there is a prima facie presumption that the child’s welfare will be best sub-served in the care and custody of its parents rather than in the custody of others, and the burden is then cast upon the parties opposing them to show the contrary.” (quoting Ross v. Pick, 199 Md. 341, 351 , 86 A.2d 463 (1952))). ²⁶³ That presumption may be rebutted by a finding that the parents are unfit or that exceptional circumstances exist. “In a custody case, unfitness means an unfitness to have custody of the child .., exceptional circumstances are those that would make parental custody detrimental to the best interest of the child.” In re Rashawn H., 402 Md. at 498 , 937 A,2d 177 (emphases omitted). A finding of exceptional circumstances requires the court to analyze a broad range of individualized factors: [ 1] the length of time the child has been away from the biological parent, [2] the age of the child when care was assumed by the third party, [3] the possible emotional effect on the child of a change of custody, [4] the period of time which elapsed before the parent sought to reclaim the child, [5] the nature and strength of the ties between the child and the third party custodian, [6] the intensity and genuineness of the parent’s desire to have the child, [7] the stability and certainty as to the child’s future in the custody of the parent.

Hoffman, 280 Md. at 191 , 372 A.2d 582 . A third party must overcome a high evidentiary burden in establishing exceptional circumstances. See McDermott v. Dougherty, 385 Md. 320, 424 , 869 A.2d 751 (2005) (“Indeed, it is a weighty task (or should be) for a third party seeking custody to demonstrate ‘exceptional circumstances’ which overcome the presumption that a parent acts in the best interest of his or her children and which overcome the constitutional right of a parent to raise his or her own children,”). That a child might be better raised by a third party is not enough.

Id. at 326 , 869 A.2d 751 . 1. The circuit court did not abuse its discretion when it granted the Grandparents’ Motion for Permissive Intervention. At the threshold, we agree that the circuit court properly allowed the Grandparents to intervene in the custody case. Wife argues that “the legislature prohibits [motions to intervene in third-party custody cases], and stated that grandparents may solely assert visitation rights under certain pre ²⁶⁴ scribed circumstances” because, under the doctrine of inclusio unius est exclusio alterius, “[t]he legislature has clearly limited [] grandparents’ rights to visitation, if permitted by the [grandparents visitation] statue and caselaw.” We disagree.

Although third parties such as the Grandparents appropriately bear a difficult burden when seeking custody, there is no doubt that they are allowed to seek it. See, e.g., id. at 435, 869 A.2d 751 (reversing circuit court judgment granting custody to the maternal grandparents after finding that neither parental unfitness nor extraordinary circumstances existed); Shurupoff v. Vockroth, 372 Md. 639, 641, 660-61 , 814 A.2d 543 (2003) (affirming circuit court’s award of child custody to child’s maternal grandparents). “[I]n some states the third party seeks custody through intervention in a domestic action between the natural parents (as in the present case).” McDermott, 385 Md. at 355-56 , 869 A.2d 751 . 8 Maryland Rule 2-214(b)(l), the permissive intervention rule, provides that “[u]pon timely motion a person may be permitted to intervene in an action when the person’s claim or defense has a question of law or fact in common with the action.” Timeliness depends on the individual circumstances in each case, and consideration of those circumstances rests initially within the sound discretion of the trial court, which, unless abused, will not be disturbed on appellate review. Md.-Nat’l Capital Park & Planning Comm’n v. Town of Washington Grove, 408 Md. 37, 70 , 968 A.2d 552 (2009) (citation omitted). And “in determining whether a motion to intervene has been timely filed, a court must consider the purpose for which intervention is sought, the probability of prejudice to the parties already in the case, the extent to which the proceedings have progressed when the movant applies to intervene, and the reason or reasons for the delay in seeking intervention.” Id. at 70 , 968 A.2d 552 (quoting Phar ²⁶⁵ maceia Eni Diagnostics, Inc. v. Wash.

Suburban Sanitary Comm’n, 85 Md.App. 555, 568 , 584 A.2d 714 (1991)); see also Md. Rule 2-214(b)(3) (“In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.”). We see no abuse of discretion in the trial court’s decision to allow the Grandparents to intervene here. They filed their motion five months before the custody merits hearing and the court granted it two months before the hearing. The Grandparents raised substantive challenges to Wife’s and Husband’s parental fitness, and Wife thoroughly addressed the Grandparents’ involvement in Child’s life in her Motion to Strike Grandparents’ Motion for Permissive Intervention and her Answer and Counter-Complaint, all of which demonstrates that she fully understood and had notice of the Grandparents’ claims.

Furthermore, Wife did not seek discovery from the Grandparents after they filed their Motion for Permissive Intervention. Wife had an opportunity to depose the Grandparents, but waited until late August 2014 to request to do so. The Grandparents made themselves available for deposition, but Wife’s attorney attempted to schedule the deposition on dates when he knew that the Grandparents’ attorney was not available, which led to Wife’s Emergency Motion to Postpone/Continue Custody Trial Scheduled For September 15. 9 ²⁶⁶ And despite the lack of a deposition or any additional discovery, Wife stated in her brief that “[t]he [Grandparents’] strategy continued as expected at trial,” which suggests that any prejudice from the Grandparents’ intervention without discovery was minimal. Cf.

Green v. Green, 188 Md.App. 661, 677 , 982 A.2d 1150 (2009) (finding no prejudice where mother was aware of the third parties’ position and sought and received discovery from them). The constitutional presumption favoring Wife over the Grandparents also cuts against the notion that Wife was prejudiced by the court’s decision to permit the Grandparents’ intervention. Wife’s burden in seeking custody did not change—the Grandparents, as intervening third parties, undertook the burden of proving that Wife was unfit or that exceptional circumstances existed. The Grandparents also contended, and the circuit court agreed, that they decided to seek custody based on information that they learned about Husband and Wife’s behavior during earlier hearings in the case when Husband and Wife began sharing explicit details of their parenting behavior.

The record supports the court’s conclusion that the Grandparents filed their motion for permissive intervention within a reasonable time of learning the relevant facts, and we see no abuse of discretion in its decision to allow the Grandparents to intervene. 2. The circuit court did not abuse its discretion when it found that the parents were unfit, that exceptional circumstances existed, and that Child’s best interests would be served if the Grandparents had custody. At the conclusion of the custody merits hearing, the court made several findings, then concluded from those findings that both Wife and Husband were unfit parents and that exceptional circumstances justified consideration of third-party custody. The court identified and relied on the McDermott standard, ²⁶⁷ which states the presumption that parents should have child custody unless they are unfit or exceptional circumstances exist which make such custody significantly detrimental to the child.

Wife disagrees, but we find that the record supports the court’s conclusions. The court began by finding that Wife and Husband were “extremely selfish” and neglected the Child. The court found that Wife lied throughout the case about her drug use and testing, • her relationship with M, her mental health, and Child’s school attendance following the Crisis Center referral, and that she failed to take responsibility for her actions. The court found “that [Wife] still takes [drugs] or she’s still ready to take them.” And the court cited Wife’s unconcerned attitude about Child’s volatile and violent behavior, noting that she left Child with Grandmother after the September 4 incident at his school rather than engaging directly, and that she had failed to make any adjustments to meet Child’s needs.

In particular, the court noted that it “didn’t see any real[] love or total attachment” between Wife and Child. Wife acknowledges that the court cited the correct standards, but contends that it applied them incorrectly. She argues that the court “comparted Wife] to the wealthy [Grandparents]” and based its order and judgment entirely “upon impermissible conclusions, assumptions and prejudices ..., which were themselves primarily based upon lifestyle choices the parties had made years before during the marriage.” She points to the determinations by the Montgomery County Child Welfare Services that she was “a fit and proper parent of the minor child” and by the court-ordered Custody Evaluator that Wife “should have custody of the minor child,” and argues that the court erred in disregarding those opinions. As a factual matter, Wife overstates the helpfulness of those documents to her ease.

The Child Welfare Services report stated only that “[a]t this time [December 16, 2013], there are no child welfare issues” and “a best interest attorney or a court evaluator should be considered to evaluate both patents’ interactions with the child to determine custody.” That investí- ²⁶⁸ gation was conducted nine months before the custody merits hearing and was not offered into evidence by anyone at the hearing. So even if the court had known about the results of the investigation, it was completely within its discretion to weigh the report in light of the more current evidence presented at the hearing regarding Wife and Child’s living situation, which had changed from the time that the Custody Evaluator conducted her investigation and made her custody recommendation. Wife also cites the oral finding of the “court-ordered psych evaluator” that Wife “did not have any psychological disorder.” But it doesn’t matter whether Wife has a psychological diagnosis—what matters is how Wife functioned (and functions). And whether or not Wife actually suffered from a psychological illness, the court was appropriately troubled by the way that Wife held herself out to others, including Husband and M, as having a psychological illness when it was far from clear that she really did.

Wife argues further that the Grandparents’ “belated ‘knowledge’ that during the mother and father’s marriage they used drugs, ... their recent litigation knowledge that one of the many drug tests taken by [Wife] came up positive for marijuana, ... and the fact that the court had ordered a psychological examination of both of the parents” was not enough “separately or in total” to meet the exceptional circumstances standard. Wife seeks to distinguish this case from Hoffman , which, according to Wife, affirmed a finding of exceptional circumstances where “there was extensive psychological testimony of the potential effect of custody on the minor child” and “the focus of the third party custody [was to] retain custody by the third party, and not to change custody to the absent parent who the child had never known for the child’s first eight years.” (Emphases in original.) The Grandparents respond that the court’s findings about Wife’s unfitness and the existence of extraordinary circumstances were supported by the evidence, and that the court did not abuse its discretion in making them. The Grandparents ²⁶⁹ point out that Wife didn’t support her claims of fitness with any witness testimony beyond her own, that neither Wife nor any other witness at the custody merits hearing testified that she was a fit and proper parent, and that none of the opinions referred to by Wife in her arguments were actually part of the custody merits hearing record. And the Grandparents are right on this last point: none of these opinions Wife asks us to consider were before the circuit court, and we cannot consider them now.

On the actual record that was