Harvey v. Marshall

³⁵⁹ ADKINS, J. In this case, we decline to hold that the familiar “best interest of the child” standard overrides traditional rules of statutory construction in interpreting three inter-related statutes governing child support. Derek T. Harvey, appellant, was obligated to pay child support for his four children, as a result of 1986 and 1989 consent paternity decrees that included support awards, and other child support enforcement efforts undertaken by the Baltimore City Office of Child Support Enforcement (BCOCSE) and the Maryland Child Support Enforcement Administration (Administration), appel-lees. 1 Harvey accrued the child support arrearage 2 while his children were in the care of their respective mothers. Harvey reunited with his children in 1996, and secured a court order transferring custody of them, with an effective date of October 1, 1996. Because child support enforcement actions brought by BCOCSE included arrears that accrued before 1996, Harvey filed a Motion to Set Aside Child Support (Motion) in 2002, naming the BCOCSE and the Administration as third-party defendants.

After a hearing on the Motion and opposition by appellees, the Circuit Court for Baltimore City issued a Memorandum Opinion and Order denying the Motion. Harvey filed this timely appeal. He presents the following questions for our review: I. Did the trial court err in concluding it does not have discretion to set aside Harvey’s child support arrear-age, pursuant to Md.Code (1974, 1999 RepLVol., 2003 ³⁶⁰ Cum.Supp.), section 5-1038(b) of the Family Law Article (FL)?

II

Did the trial court err in failing to apply the best interest of the child standard in determining whether Harvey’s child support arrearage should be set aside pursuant to FL section 5-1038(b)?

III

Did the “Administration” and BCOCSE fail to properly exercise their discretion to forgive State-owed child support arrearage?

IV

Did the Administration fail to properly develop criteria, procedures and regulations to carry out its authority to forgive Harvey’s State-owed child support arrearages pursuant to FL section 10-112? Answering no to the first three questions, and declining to reach the fourth, we affirm the circuit court. FACTS AND LEGAL PROCEEDINGS Harvey’s three younger children-Dereka, Robin, and Derek, Jr.-came to live with Harvey in the fall of 1996, when their mother was no longer able to care for them. Later that same year, Harvey’s eldest daughter, Keawoni, came to live with him because her mother died.

Eventually, Harvey also provided a home for Kelly Williams, Keawoni’s half sister, due to the death of her mother and the inability of her grandparents to care for her. Shortly after they arrived, Harvey notified BCOCSE in person that his children were now in his custody. Harvey asked the agency to stop collecting child support and to forgive the arrearage. Despite additional appearances at the BCOCSE office, at which Harvey allegedly requested modification of the child support order and the arrearage account, and received assurances “on several occasions that the situation would be resolved,” BCOCSE continued to charge Harvey for current support and to demand payment of the mounting arrears. ³⁶¹ BCOCSE reported the arrearage to credit reporting agencies and intercepted Harvey’s tax refunds.

In the spring of 2001, Harvey, with the help of counsel from the Legal Aid Bureau, was able to have the current support obligations diverted to pay down the arrearage. Harvey’s subsequent requests to BCOCSE to forgive the arrearage were unsuccessful. Harvey then turned to the Administration itself for relief. In a June 2, 2001 letter, Harvey’s counsel advised the Administration that Harvey’s arrearage totaled approximately $32,000 in the two cases, with all but $1,600 owed to the State.

Counsel asserted that $57 was being taken from Harvey’s weekly wages under an earnings withholding order (EWO), and that this money would be better spent to support the five children who were living with Harvey. Administration Executive Director Teresa Kaiser responded by letter dated July 6, 2001. She advised that the Administration would consider Harvey’s request to abate the state-owed arrears upon receipt of additional information and court orders establishing Harvey’s custody, including the length each child had resided in the Harvey household. Harvey supplied the requested information and obtained a November 20 custody order for his four children, retroactive to October 1, 1996.

The Administration then audited Harvey’s account. It adjusted the account as a result of the custody order to reflect only the $5,421.26 in arrearage that existed before October 1, 1996, the date on which Harvey assumed custody. After reviewing the case, Kaiser was persuaded by Harvey’s argument that his duties as custodial parent warranted “arrearage abatement ... so that he could focus on supporting his family.” In a March 6, 2002 memorandum, she proposed to Dwayne Brown, BCOCSE Project Director, that the following actions be taken in this case: 1. Collect $1.00 per year on the arrears of $5,421.26; 2.

Suspend the interception of State and Federal Income Taxes and other enforcement measures except for the Maryland Lottery until: ³⁶² (a) all the children are emancipated; (b) the non-custodial parent begins to pay child support; or (c) the arrears are paid completely by interceptions received through the Maryland Lottery Office. 3. Enter a narrative into the Case Action Logs stating why enforcement in this case was suspended; and 4. Refund State and Federal Taxes that were intercepted. Kaiser asked Brown to “contact me to confirm these arrangements or to discuss other satisfactory arrangements.” B.COCSE, however, rejected the Administration proposal.

Brown explained what happened: Once this memorandum was done, ... my supervisor, Mr. Drummond discussed this at one. of our bi-weekly meetings, basically stating that we didn’t agree with this proposal because ... our computer systems are not set up to read anything like this, which means that if you have $5,000.00 on the system, we don’t really have much of a way to monitor these cases to make sure his taxes are intercepted or not you know turned into the credit agency. We have a lot of automated systems that are in place[.] The Administration took no further action. Harvey remarried in 2002, adding his wife and her son to his household. He earns $10.96 per hour as a landscaper for the City of Baltimore.

He reports that he has not been able to buy a house because he cannot obtain financing as a result of the continued reporting of the arrearage to credit agencies. In addition, he asserts that “[t]he continued child support collection is harming [his] ability to pay and save for college expenses.” He has one daughter in college and the rest “hope to go” someday. Harvey moved to set aside the arrearage on May 18, 2002, arguing that Md.Code (1984, 1999 Repl.Vol., 2003 Cum.Supp.), section 5-1038(b) of the Family Law Code (FL) gives the court discretionary authority to modify or set aside child support arrears when doing so is in the best interest of the children or when special circumstances exist. ³⁶³ I. The Trial Court Did Not Err In Declining To Abate Or Modify Harvey’s Support Payments Retroactively To A Date Prior To Harvey’s Motion To Set Aside Child Support A. The Court Had No Discretion To Retroactively Extinguish The Order Harvey argues that trial court “erred in concluding it did not have discretion to set aside Harvey’s child support orders pursuant to FL section 5-1038(b).” This section, part of the Paternity Proceedings Subtitle, is titled “Finality of orders; alteration” and provides: Except for a declaration of paternity, the court may modify or set aside any order or part of an order under this subtitle as the court considers just and proper in light of the circumstances and in the best interests of the child. The Administration and BCOCSE respond that the circuit court was correct in holding that it did not have authority to modify a child support order relating to a period before the filing of the motion to modify, because it is explicitly prohibited from doing so by FL section 12-104.

This section, which applies to all child support actions, including paternity cases, provides: (a) Prerequisites. — The court may modify a child support award subsequent to the filing of a motion for modification and upon a showing of a material change of circumstance. (b) Retroactivity of modification. — The court may not retroactively modify a child support award prior to the date of the filing of the motion for modification. (Emphasis added.) We hold that the trial court did not err, because we agree with appellees that FL section 12-104, limiting the time when a court can modify a support order, prohibited retroactive modification to an effective date preceding Harvey’s motion. 3 ³⁶⁴ We reach this conclusion by applying traditional rules of statutory construction, including consideration of legislative history. Judge Hollander recently summarized these rules: The seminal tenet of statutory construction compels us to ascertain and effectuate the legislative intent....

The statutory text is our starting point. Generally, we give the words of the statute their “ordinary and common meaning within the context in which they are used.” ... To achieve that objective, we must incorporate “the overall purpose of the statute into its interpretation.” When the statutory language is “clear on its face and in its context, then we do not ordinarily need to turn to the Legislative history.” In contrast, when the statute is ambiguous, we ordinarily consider the language “in light of the ... objectives and purpose of the enactment.” In this regard, “we may ... consider the particular problem or problems the legislature was addressing and the objectives it sought to attain.” To the extent “reasonably possible,” we read a statute so “that no word, phrase, clause, or sentence is rendered surplusage or meaningless.” Moreover, when the statute is part of a general statutory scheme or system, “ ‘all sections must be read together ... to discern the true intent of the legislature.’ ” ... In our effort to effectuate the Legislature’s intent, we may consider “ ‘the consequences resulting from one meaning rather than another, and adopt that construction which avoids an illogical or unreasonable result, or one which is inconsistent with common sense.’ ” Mayor of Baltimore City v. Johnson, 156 Md.App. 569, 592-93 , 847 A.2d 1190 (2004) (citations omitted).

We are also mindful of two principles especially applicable to interpretation of two seemingly competing or conflicting statutes. “The first is that when construing two statutes that involve the same subject matter, a harmonious ³⁶⁵ interpretation of the statutes is ‘strongly favor[ed].’ ” Dep’t of Pub. Safety & Corr. Serv. v. Beard, 142 Md.App. 283, 302 , 790 A.2d 57 , cert. denied,, 369 Md. 180 , 798 A.2d 552 (2002)(quoting Maryland State, Police v. Warwick Supply & Equip. Co., 330 Md. 474, 483-84 , 624 A.2d 1238 (1993)). “The second is that where two enactments — one general, the other specific — appear to cover the same subject, the specific enactment applies.” Id.

Modification v. Set Aside We are faced here with two competing, if not conflicting, statutory provisions that seemingly address the same issue. FL section 5-1038(b) authorizes the court in a paternity case to “modify or set aside any order as the court considers just and proper” (emphasis added), and FL section 12-104(b) prohibits a court from “retroactively modifying] a child support award prior to the date of the filing of the motion for modification.” We are called upon to decide whether the prohibition against retroactive modification contained in FL section 12-104(b) is intended to limit the broad power to “modify or set-aside” granted in FL section 5-1038(b). More specifically, we must decide whether the prohibition against “modifyfing]” in section 12-104(b) prevents a court from granting a parent’s request to eliminate a child support arrearage that accrued before the parent moved to modify the child support award. If we conclude it does, then sections 5-1038(b) and 12-104(b) conflict, and we must decide how to reconcile the two sections.

Beginning our analysis by examining the plain language of the statutes, we turn to the definition of “modify.” Black’s Law Dictionary 1020 (7th ed.1999) does not include the word “modify,” but defines “modification” as “1. A change to something; an alteration, <a contract modification >. 2. A qualification or limitation of something <a modification of drinking habits>.” Applying this definition, it appears that the section 12-104 prohibition against retroactive modification also would prohibit a court from extinguishing those portions of the award that related to periods prior to the motion for modification, because to do so would be a limita ³⁶⁶ tion on the original award. Thus, section 12-104 would conflict with the general power given in section 5 — 1038(b) to “modify or set aside” and we would need to decide how to reconcile the two statutes.

Harvey disagrees with this interpretation. He invites us to recognize a substantive distinction between “modify[ing]” a child support order retroactively and “setting aside” such an order retroactively. He argues that he is asking the court to “set aside” and not to “modify,” because he seeks to avoid all of his child support arrearage. In his view, “modifying]” does not include “setting aside,” so that “[t]he prohibition of retroactive modifications to child support orders in FL § 12-104 does not prohibit a court from setting aside the orders in their entirety pursuant to FL § 5 — 1038(b).” Harvey also relies on Black’s Law Dictionary, which defines “set aside” as “[a] judgment, decree, award, or any proceedings to cancel, annul, or revoke them at the instance of a party unjustly or irregularly affected by them.” Black’s Law Dictionary 1537 (4th ed.1968). 4 He also offers the definition of “modification” from that earlier edition of Black’s, as “a change; an alteration which introduces new elements into the details ... but leaves the general purpose and effect of the subject-matter intact....” Id. at 1155 (emphasis added).

Although Harvey does not cite it, there is superficial support for his position in Moore v. Jacobsen, 373 Md. 185, 191 , 817 A.2d 212 (2003), in which the Court of Appeals recently held that an agreement not to “modify” alimony would not preclude termination of alimony upon remarriage because “modification” does not equate to “termination.” But the Court of Appeals based its reasoning in Moore in large part on FL section 11-108, which requires that alimony terminate on the recipient’s remarriage, unless the parties agree otherwise. The Court considered the traditional public policy favoring ³⁶⁷ termination of alimony upon remarriage, and found significant that, “[i]n contrast to modification, which requires court action, termination [under section 11-108] occurs by operation of law and thus does not require court action.” Id. at 191 , 817 A.2d 212 . In the case of child support orders, however, court action clearly is required. Thus, Harvey had to obtain judicial relief from the effects of his previously adjudicated child support orders.

There is no automatic termination, even if, as in this case, physical custody of the children switches over to the parent obligor. Moreover, unlike alimony upon remarriage, there is no historical policy in Maryland favoring termination of child support arrears. On balance, we do not view Moore as an instruction that a judicial order eliminating all unpaid child support is a “termination” or that it cannot be a “modification” within the meaning of section 12-104. In order for Harvey’s “modification v. set aside” distinction to achieve the result he seeks, the judicial action that Harvey requests must be classified as a “set aside,” and not a “modification,” and the two must be mutually exclusive.

Harvey, however, does not even satisfy his proffered definition of “set aside” as a judicial proceeding to “cancel, annul, or revoke [a judgment, order, etc] at the instance of a party unjustly or irregularly affected by [it].” 5 It is not unjust or irregular that Harvey be required to pay child support for periods that his children were living with their mothers and being supported by the State through welfare payments. 6 ³⁶⁸ Indeed, Harvey is not even asserting that it is. Harvey does not challenge the paternity order or otherwise attack the validity of the original order awarding child support. His claim, rather, only relates to a portion of the original child support award, the payment of which affects his current family’s well-being. We perceive his claim to be one for modification, in that, although the child support award was appropriate when entered, and still has a valid legal and factual basis, a portion of the award should not be enforced because his family circumstances have changed, and payment would impose a hardship for the children.

Turning from the statutory language to the statutory scheme, we must also consider the logical consequences resulting from Harvey’s construction of the statute. See Johnson, 156 Md.App. at 593 , 847 A.2d 1190 . Harvey’s interpretation would require us to hold the legislature intended that a court could wipe out 100% of an arrearage retroactively, because that is a “set aside,” but that court could not reduce the arrearage by 99%, because that would be a “modification.” This result is untenable. We reject Harvey’s contention that the legality of retroactive changes to child support orders is based on the difference in the amount of the change.

Rather, we think the distinction, if any, between a “modification” and a “set aside,” as used in section 12-104, would rest on the reason for the change. See, e.g., Jessica G. v. Hector M., 337 Md. 388, 401 , 653 A.2d 922 , cert. denied, 516 U.S. 829 , 116 S.Ct. 99 , 133 L.Ed.2d 53 (1995)(prior unappealed order “dismissing the paternity action with prejudice is clearly the type of order envisioned by FL § 5-1038(b), and it may be set aside if a court finds such action ‘just and proper in light of the circumstances and in the best interests of the child’ ”). If the child support order was invalid in the first place, then ³⁶⁹ there would be reason for it to be “set aside” in its entirety. 7 If it was originally valid, but circumstances have changed, then only that part of the original award affected by the new circumstances would be changed, and it is a modification. Our conclusion that the prohibition against retroactively “modifying],” as used in FL section 12-104, is intended to cover elimination of an arrearage, is also supported by legislative history, and a previous decision of this Court.

In Reuter v. Reuter, 102 Md.App. 212, 240 , 649 A.2d 24 (1994), we recognized that FL section 12-104(b) was enacted “to bring Maryland into compliance with” Federal law governing welfare funding. Legislative history reflects the same. See Hearing on S.B. 691 befare Senate Judicial Proceedings Comm., 1988 Gen. Assembly (Md.1988)(statement of Senator Ida G. Ruben, S.B. 691 sponsor).

The pertinent Federal law mandates: In order to [receive certain Federal funding] ..., each State must have in effect laws requiring the use of .... [procedures which require that any payment or installment of support under any child support order ... is .. not subject to retroactive modification by such State or by any other State; except that such procedures may permit modification with respect to any period during which there is pending a petition for modification, but only from the date that notice ³⁷⁰ of such petition has been given ... to the obligee or (where the obligee is the petitioner) to the obligor. 42 U.S.C. § 666 (a)(9)(2004). Ann C. Helton, then Executive Director of the Administration, testified before the Maryland Senate Judicial Proceedings Committee that Maryland was notified on December 8, 1997, that the Director of the Federal Office of Child Support Enforcement intended to disapprove Maryland’s State Plan for Child Support because of “failure to enact legislation prohibiting retroactive modification of child support orders.” See Hearing on S.B. 691 before Senate Judicial Proceedings Comm., 1988 Gen. Assembly (Md.1988)(statement of Ann C. Helton). This failure would “result in a total withdrawal of Federal funding for the program ($23.1 m[illion]) and a possible penalty against [Maryland’s] AFDC program of from 1% to 5% of its share of Federal funds ($1.2 to 6 million]).” Id.

Helton also testified that “[t]he intent of Congress [in enacting section 666(a)(9) ] was specifically aimed at the practice of some courts to reduce or forgive arrearages.” Id. See also Ruben Statement, supra (when dealing with support arrears before proposal of S.B. 691, Maryland courts “usually wipe[d] out the previous debt and allow[ed] the payor to start anew with child [s]upport payments”). Helton further explained that “[c]ollection of those overdue amounts means not only that the children, often living on a marginal income in single parent households, will benefit, but that the burden on the taxpayer is reduced through offset in expenditures for AFDC.” Id. After examining the statute in light of this legislative scheme and history, we conclude that the legislature, in using the term “modify” in FL section 12-104 simply followed the language of the Federal statute, intending to prohibit, inter alia, the courts from wiping out an arrearage accrued during periods before the filing of a motion for modification.

Thus, we reject the interpretation advanced by Harvey — that the legislature intended that the FL section 12-104 prohibition ³⁷¹ does not apply when a court is asked to wipe out an arrearage retroactively. Although we recognize that, when construing two statutes that involve the same subject matter, “a harmonious interpretation” of the statutes is “strongly favor[ed],” Md. State Police, 330 Md. at 483-84 , 624 A.2d 1238 , we conclude there is a conflict here because FL section 5-1038(b) seemingly permits a court to retroactively extinguish an arrearage, whereas FL section 12-104 prohibits that. 8 FL Section 12-104 Controls Having decided that the prohibition against retroactive modification in FL section 12-104 precludes a judicial order that FL section 5-1038(b) otherwise allows, we still must decide which one is applicable to our case. We do so by returning to the principles of legislative construction regarding competing statutes, one general and one specific. Section 5-1038(b) is more general in that it addresses the court’s broad authority, in paternity cases, to issue orders that “modify or set aside any order or part of an order under [the paternity proceedings] subtitle,” except a declaration of paternity.

This, of course, would include a child support order, as well as other orders. 9 In contrast, FL section 12-104(b), is the more specific provision because it addresses when those ³⁷² orders can be made in cases involving child support. “[W]here there is a specific enactment and a general enactment which, in its most comprehensive sense, would include what is embraced in the former, the particular enactment must be operative, and the general enactment must be taken to affect only such cases within its general language as are not within the provisions of the particular enactment.’ ” Dep’t of Natural Res. v. France, 277 Md. 432, 461 , 357 A.2d 78 (1976)(quoting Criminal Injuries Comp. Bd. v. Gould, 273 Md. 486, 495 , 331 A.2d 55 (1975))(quotation marks omitted). But we do not rely solely on the “specific v. general ” distinction to interpret these statutes. In addition to section 12-104(b) being the more specific enactment, it is also the later enactment.

FL section 12-104 was enacted in 1988, at a time when FL section 5 — 1038(b) had long been in existence. See 1988 Laws, ch. 338; Adams v. Mallory, 308 Md. 453, 462 , 520 A.2d 371 (1987)(examining section 5-1038(b)); 1984 Md. Laws, ch. 296 § 2 (recodification). When attempting to harmonize two statutes that address the same subject, we presume that when the legislature enacted the later of the two statutes, it was aware of the one enacted earlier. “Even though two statutes may require conflicting results with regard to their common subject, they are not rendered thereby necessarily irreconcilable.” Gallaudet Univ. v. Nat’l Soc’y of the Daughters of the Am. Revolution, 117 Md.App. 171, 200-01 , 699 A.2d 531 (1997)(quoting Gov’t Employees Ins.

Co. v. Ins. Comm’r, 332 Md. 124, 133 , 630 A.2d 713 (1993)). In this instance, the General Assembly was aware of section 5-1038(b) when it enacted section 12-104. The problem targeted by section 12-104 was identified as the courts’ too frequent exercise of discretion to “wipe[ ] out the previous debt[.]” See Ruben Statement, supra.

That troublesome judicial discretion is the product of section 5-1038(b). Thus, the legislative history shows that the 1988 General Assembly enacted FL section 12-104 in order to deliberately circumscribe the broad judicial discretion afforded under FL ³⁷³ section 5-1038(b), in a successful effort to preserve Federal funding for Maryland welfare programs. We hold that the circuit court properly construed FL section 12-104 as a limitation on the earlier enacted and more generally applicable FL section 5-1038(b), preventing courts from modifying or setting aside any child support arrearage that accrued before an obligor parent petitions for modification. B. FL Section 10-118 Does Not Override Traditional Statutory Construction Principles In Interpreting Sections 12-104 and 5-1038(b) FL section 10-118 provides: Subject to any federal law or program, the Administration and local support enforcement offices shall promote and serve the best interests of the child in carrying out their child support responsibilities under this subtitle.

Without specifically saying so, Harvey seems to be arguing that the best interest of the child principle, as embodied in section 10-118, must override any interpretation of FL sections 5-1038(b) and 12-104 under traditional principles of statutory construction. He advances: The legislative history [of FL sections 10-118 and 5-1002] reflects that the law was formed on the bedrock principle in Maryland that the best interest of the children is the controlling factor in matters affecting the children. He also relies on various Maryland decisions recognizing the importance of the best interest of the child standard: The enforcement of the child support orders and resulting state-owed arrearages is taking money from the household of the children the order was meant to support, harming Mr. Harvey’s ability to support his children, harming his credit history and ability to obtain needed financing, and harming his ability to save money in order to put his children through college.... In fact, the best interests of the child is such a fundamental guiding principle in Mary ³⁷⁴ land, that it is given even greater importance than a parent’s constitutionally protected fundamental liberty interest in the parent-child relationship.

In re Adoption/Guardianship No. 11137, 106 Md.App. 308, 316 , 664 A.2d 443 (1995). Harvey’s contentions may be answered most simply by reference to the language directing the Administration to apply the best interest of child standard, but to do so “[subject to any federal law or program[.]” As we have previously explained, the Federal welfare funding statute requires that there be no retroactive modification of child support orders, and section 12-104 complies with that directive. Moreover, we do not agree with Harvey that this interpretation is consistent with the principles underlying the best interest standard. Although a child’s best interest will override a parent’s fundamental right in the context of decisions regarding custody and adoption, here we are not evaluating the many and weighty factors that enter into a decision regarding with whom a child will live, and who makes decisions on behalf of that child.

We are simply deciding whether a child’s father should be able to avoid repaying a judicially established debt that he owes to the State. See infra section II. In this context, the best interest of the child does not override the statutory mandate of FL section 12-104. For these reasons, the circuit court was correct in concluding it did not have discretion to set aside Harvey’s child support arrears pursuant to FL section 5-1038(b).

Nor, as we explain below, did it err in declining to apply the statutory best interest of the child standard established in FL section 10-118.

II

The Administration Was Not Obligated To Apply The Best Interest Of The Child Standard In Exercising Its Discretion Under FL Section 10-112 Harvey again invokes the best interest of the child standard, this time arguing that it. governs the Administra ³⁷⁵ tion’s exercise of discretion under FL section 10-112(a) in determining whether to settle with him by accepting a lesser sum than the adjudicated amount of his arrearage. This section reads: If the Administration considers it to be in the best interest of this State, in a case in which an assignment has been made under Article 88A, section 50(b)(2) of the Code, the Administration may accept in full settlement of an arrear-age in child support payments an amount that is less than the total arrearage. Harvey claims that the exercise of discretion under FL section 10-112 must be guided by the mandate of FL section 10-118, requiring the Administration and local support enforcement agencies to “promote and serve the best interests of the child in carrying out their child support responsibilities under this subtitle.” We disagree with Harvey, and hold that the best interest of the child standard does not govern the exercise of discretion under FL section 10-112. 10 We again start our analysis with the plain language of the statute. See Thrasher v. Homecomings Fin.

Network, Inc., 154 Md.App. 77, 82 , 838 A.2d 392 (2003), cert. denied, 380 Md. 619 , 846 A.2d 402 (2004). FL section 10-112 specifically says that the Administration may settle “[i]f the Administration considers it to be in the best interest of this State,” and notably omits any mention of the best interest of the child. If the legislature meant that the child’s interest was the governing factor, or even a required 11 consideration, it