Herrick v. Wain

²²⁵ SHARER, J. This grandparent visitation case comes to this Court as a result of the deteriorating relationship between appellant, Scott M. Herrick (“Herrick”), who appeals from a visitation order of the Circuit Court for Montgomery County, and appellee, Kay Wain (“Wain”), the maternal grandmother of his children. Wain filed a complaint for reasonable visitation, which was referred to the court’s family law master, who made findings and recommendations, to which no exceptions were filed. The circuit court, therefore, entered a pendente lite visitation order allowing Wain visitation with the children on the third Saturday of every month from 11 a.m. until 4 p.m.; one weeknight visit per month; and several hours on specified Japanese days of celebration. At a later hearing on the merits, from which this appeal was taken, the circuit court ordered that visits with Wain were not then in the best interests of the grandchildren.

The court suspended visitation, to be resumed only after the parties attended specified visits with Dr. Mary Donahue, the chil-drens’ therapist. The modified schedule called for visitation on alternate Friday afternoons, with Wain picking up the children after school and returning them to Herrick by 7:30 p.m. Appellant has presented for our review two questions, which we have rephrased somewhat for clarity: 1. Did the trial court err in granting visitation over appellant’s objection, in derogation of his due process right under the Fourteenth Amendment of the United States Constitution to make decisions about his children? 2.

Did the trial court err in failing to apply a presumption in favor of appellant’s decision to limit appellee’s visitation with the children? We answer both questions in the negative, and shall affirm the circuit court. ²²⁶ FACTUAL and PROCEDURAL HISTORY Leta Wain (“Leta”) and Scott Herrick (“Herrick”) were married in 1992. Two children were born of the marriage, Leah Sumi Herrick (“Leah”), on May 15, 1993, and Kane Francis Herrick (“Kane”), on November 30,1994. Wain is the mother of Leta Wain, and the children’s maternal grandmother.

Herrick and Leta separated in 1998, and the children resided with their mother. Following the separation, and until Leta’s terminal illness, Wain was present in the household with the children “just about all the time.” Herrick and Leta were divorced on April 12, 2000. The Court ordered joint legal custody of the children, and granted their primary residential custody to Leta, who served as the primary caretaker of the children after the parties divorced. She subsequently bought a home for herself and the children in 2000, where Wain resided with Leta and the children.

During the separation, and before the divorce was granted, Leta became ill with cancer. During Leta’s illness, Wain resided with Leta and the children for approximately one year, and became responsible for seeing to many of the childrens’ needs, including feeding them, taking them to school, helping with their homework, and taking them on outings. Leta passed away on November 9, 2001. Shortly before Leta’s death, she authored a “Memorandum of Understanding” which provided that the children would transition from her custody into appellant’s care when her physical condition significantly worsened.

In order to assist the children in the transition, Herrick hired a full-time nanny, a choice approved by Leta. Additionally, Herrick arranged for the children to see a therapist, Dr. Donahue, to aid them in dealing with their mother’s terminal illness and impending death. The children began visits with Dr. Donahue the first day that they returned to their father’s care. Leta’s last will and testament, executed by her knowing of her terminal illness, emphasized her wish that her children have a relationship with Wain and the rest of her family ²²⁷ despite the divorce.

She wished that the children continue to be raised with an understanding and the benefit of both their father’s Jewish culture and her Japanese heritage. The parties have conflicting accounts of their relationship at the time Leta was admitted to the hospital for the final time. Wain claimed that Herrick “took” the children and never brought them to say goodbye to their dying mother. In contrast, Herrick claimed that he was never contacted to take the children to the hospital to visit their mother before her death.

The record clearly illustrates, and the parties acknowledge, their contentious relationship. Herrick denied Leah’s requests to spend time with her grandmother prior to her mother’s death. Wain claims that Herrick consistently tried to sabotage the children’s visits with her, and points to an incident in May 2002 when she was scheduled to meet the children at a local deli to celebrate Boys Day, a Japanese holiday. Herrick took the children to the deli as scheduled, without telling them that there was to be a visit with their grandmother.

He fed them before the visit and took the childrens’ friend along. As a result, the children were surprised and upset by the visit and it was cancelled. Wain alleges that Herrick would always allow the children to have their friends present during their visits, therefore detracting from their time with Wain. Finally, Wain alleges that Herrick involved his children in his dispute with her by telling them that she had “stolen” money set aside for them by their mother in a trust.

For his part, Herrick alleges that Wain consistently voiced her disdain for him in front of the children, even before he and Leta had divorced. Herrick further testified that prior to Leta’s death, he would call her house to speak to the children and was told by Wain that the children were outside, even though they could be plainly heard in the background. He also claimed that Wain engaged in inappropriate discipline of the children in his presence, spanking them when he saw no reason to do so. Herrick argues that Wain consistently ²²⁸ contradicts the childrens’ Jewish faith by telling them they are not Jewish, and sending them Christmas and Easter cards instead of a card celebrating the Jewish holidays.

Additionally, Wain sent letters to the children that Herrick claims have a detrimental effect on them. She wrote to the children that their mother is watching them, despite the fact that Dr. Donahue told her such statements made the children uncomfortable in light of their Jewish faith. The letters were particularly problematic for Kane. Their relationship reached its nadir when a confrontation occurred at Herrick’s home over Kane’s pets, which escalated into a shouting match that ended with the police being called to remove Wain from the property.

Wain described her relationship with the children as “close.” In an effort to teach the children about Japanese culture, she showed both children origami, the art of paper folding, and started to teach Leah the Japanese tea ceremony and Japanese flower arranging, called ichibana. Wain also celebrated Japanese holidays with the children, including Boys Day, Girls Day, the Japanese New Year, and her daughter’s Memorial Day. After Leta’s death, Kane continued to act indifferently to Wain’s visits, based on his perception that she showed favoritism to Leah. Leah demonstrated her disappointment by hiding or pretending to be asleep to avoid Wain.

On December 7, 2001, Wain filed a complaint for reasonable visitation by a grandparent pursuant to Md.Code Ann., Fam. Law § 9-102 (2008). Herrick filed an answer to the complaint on January 24, 2002, stating that he was not opposed to Wain’s visitation -with the children, but expressing concerns about the extent of the visits. As we have noted, a hearing was held on May 28, 2002 before the family law master, whose findings and recommendations were incorporated into a pendente lite order entered on June 10, 2002.

A merits hearing was held on Wain’s complaint on December 4, 2002 and January 24, 2003, before the circuit court. The circuit court issued its opinion on February 27, 2003, and ²²⁹ thereafter entered a visitation order. The court discussed the relationship between Wain and Herrick in relation to the best interests of the children and ruled: Dr. Donahue’s proposed access schedule is set forth above. Both parties also proposed access schedules for Plaintiff and the children. [Herrick] proposed that, at the present time, no visits take place.

However, he did concede that he would be amenable to whatever Dr. Donahue recommended. The Court finds that [Herrick]’s access schedule is not entitled to deference because he appears more concerned about his need to be respected than the children’s right to love even those whom he does not love. He would indeed be entitled to deference if this Court found he could subordinate his needs to the children’s best interests. The Court will adopt Dr. Donahue’s proposed access schedule.

However, in the instant case, at this time [Wain’s] visits with her grandchildren are not in their best interest, in part because of her behavior and partly because of their father’s behavior. With counseling, the two adults who are most important in these children’s lives may be able to subordinate their own needs and feelings to those of the children. Instead, each tends to dislike that part of the other that separates them rather than realizing that the children are a composition of both — they are both Japanese and Jewish— and, they need to assist the children in being able to integrate both parts of themselves in order to develop into healthy whole adults. The Court will order [Wain] and [Herrick] to meet with Dr. Donahue for two sessions to discuss the mechanics and parameters of [Wain’s] visits with the children prior to the first visit taking place.

Those planning meetings are to be completed by March 30, 2003. They should include ways in which [Herrick] can encourage, support and prepare his children for visits, and activities that [Wain] might consider with the children. By April 4, 2003, [Wain] should be able to pick up the children at school and take them with her (as planned with Dr. Donahue) until 7:30 p.m. when she shall return them to [Herrick’s] home. At the request of either ²³⁰ [Wain], [Herrick], or the children, further meetings with Dr. Donahue will occur as needed.

A one-day review hearing shall be held in six months, on September 8, 2003, at 9:30 a.m. (Emphasis in trial court’s original opinion.) Herrick filed a timely notice of appeal on March 7, 2003. DISCUSSION Maryland’s grandparent visitation statute is found in Md. Code Ann., Fam. Law § 9-102 , which provides: An equity court may: (1) consider a petition for reasonable visitation of a grandchild by a grandparent; and (2) if the court finds it to be in the best interests of the child, grant visitation rights to the grandparent.

Md.Code Ann., Fam. Law 9-102 (2003). The Court of Appeals discussed the meaning and history of 9-102 in Fairbanks v. McCarter, 330 Md. 39 , 622 A.2d 121 (1993): Both the language and the purpose of the statute are clear. The legislature invested trial court judges sitting in equity with the power to consider and award reasonable grandpa-rental visitation in furtherance of the child’s best interest.

The statute’s use of the word “may,” rather than “shall,” signifies that the steps prescribed in § 9-102 are available, but not mandatory; such is the ordinary and natural import of the word.... The discretionary import of the statute is thus consonant with the common-law rule that grandparents have no inherent right to custody of their grandchildren.... We observe in this regard that the 1981 grandparents’ visitation statute represented the culmination of a four-year effort to enact legislation to afford visitation rights to grandparents .... It tracked the language of House Bill 1205, introduced in the 1979 Session of the General Assembly (but not enacted), as to which its sponsor, then Delegate Pica, explained its content to the House Judiciary Committee: ²³¹ “In HB 1205 grandparents are not automatically deemed a group to be considered in the awarding of visitation rights.

They are, however, a category that may be considered for visitation rights. And once they are considered, they may be awarded the rights if it is in the best interest of the child. “The language puts no mandatory restrictions on a judge when he determines visitation rights. It only offers a category he may consider if the child would benefit from the visits.” (Emphasis in original.) As the 1979 House Bill and § 9-102, as enacted in 1981, were substantively identical, Delegate Pica’s statement of the legislation’s intent applies to the current statute, and is consistent with its plain language. Fairbanks v. McCarter, supra, 330 Md. at 46-47 , 622 A.2d 121 (citations omitted).

The statute does not require a threshold finding of exceptional circumstances in order to justify an order for grandparent visitation. Fairbanks, supra, 330 Md. at 48 , 622 A.2d 121 . The Court of Appeals explained further: Nor is there anything in § 9-102 to indicate in any way that a grandparent’s right to petition for visitation with a child stems from a corresponding right enjoyed by the parent. In other words, the visitation rights of a grandparent are not derivative.

Weichman v. Weichman, 50 Wis.2d 731 , 184 N.W.2d 882, 885 (1971); accord Bennett v. Bennett, 150 N.J.Super. 509 , 376 A.2d 191, 193 (1977). Rather than functioning within a sub-set of parental visitation law, the grandparent’s right to seek visitation under § 9-102 exists independently. We thus hold, in sum, that under § 9-102 grandparents enjoy an independent right to petition for visitation with their grandchildren. Grandparents are not obliged to support their claim by alleging and proving the existence of exceptional circumstances justifying such visitation.

The outcome of the grandparents’ petition lies within the sound ²³² discretion of the trial court, guided solely by the best interests of the grandchild. In the instant case, the trial court appears to have permitted other considerations to intrude into and color its decision. The grandchild’s best interest is paramount. Hixon v. Buchberger, 306 Md. 72, 83 , 507 A.2d 607 (1986).

Indeed, it is the exclusive determinant. Fairbanks, supra, 330 Md. at 48-49 , 622 A.2d 121 . In Fairbanks , the Court of Appeals discussed the factors to be considered when determining the best interests of the child with respect to grandparent visitation: Common experience dictates that visits with grandparents often offer benefits to children which cannot be derived from any other relationship. Mimkon v. Ford, 66 N.J. 426 , 332 A.2d 199, 204-205 (1975) ...

As a general proposition, visitation awarded to adults is not for their gratification or enjoyment, but to fulfill the needs of the child.... The trial court must concern itself solely with the welfare and prospects of the child. In so doing, the court should assess in their totality all relevant factors and circumstances pertaining to the grandchild’s best interests. These would include, but not be limited to: the nature and stability of the child’s relationships with its parents; the nature and substantiality of the relationship between the child and the grandparent, taking into account frequency of contact, regularity of contact, and amount of time spent together; the potential benefits and detriments to the child in granting the visitation order; the effect, if any, grandparental visitation would have on the child’s attachment to its nuclear family; the physical and emotional health of the adults involved; and the stability of the child’s living and schooling arrangements.

Fairbanks, supra, 330 Md. at 49-50 , 622 A.2d 121 (citations omitted). I. Did the trial court err in granting visitation over appellant’s