Karen P. v. Christopher J.B.

DEBORAH S. EYLER, J. After a two-day trial, the Circuit Court for Baltimore County granted custody of Sebastian B. and Claudia B. to Christopher J. B., the appellee. Karen P., the appellant, is the children’s mother. Christopher is the biological father of Sebastian, but not of Claudia. 1 On appeal, Karen challenges the decision with respect to Claudia only, posing one question: “Did the Trial Court err when it found the existence of exceptional circumstances sufficient to overcome the presumption that it was in Claudia’s best interest to be in the custody of the appellant, a biological parent?” For the following reasons, we shall affirm the judgment of the circuit court. FACTS AND PROCEEDINGS The trial in this case was held on October 1 and October 14, 2004.

The witnesses were Karen; Karen’s mother; Christopher; Christopher’s mother; Jennifer N., whose child socializes with Sebastian; and Rebecca R., Christopher’s fiancée. Relevant documents, including school and pre-school records for the children, were introduced into evidence. Our recitation of the facts is based on the findings made by the trial court, and, when express findings were not made, a construction of the evidence most favorable to the court’s decision. ²⁵⁵ At the time of trial, Karen was 43 years old. She was living in Avalon, New Jersey, where she had moved on May 26, 2004.

For almost all of the 12 years before the move, she and Christopher had lived together in Catonsville. For the six years before Karen moved to Avalon, she had worked as a waitress at an upscale restaurant in Howard County. In 2003, she earned $33,000 from that work. Karen has been married twice in her life.

From those marriages, she had two children, one by each husband. At the time of the trial, those children were ages 22 and 19. Christopher was 35 years old when the trial took place. He was living in Catonsville with Rebecca and her child.

Christopher has never been married. He is employed by a loan consolidation company, at an annual salary of $35,000. Karen and Christopher had a long and increasingly tumultuous domestic relationship. They met and became romantically involved in 1992.

That same year, they moved into a single household, with Karen’s two children from her marriages (who then were approximately ages 10 and 7). On March 20, 1996, Sebastian was born. The parties’ relationship started to deteriorate after that, and the parties constantly bickered and argued. Karen thought Christopher was self-absorbed and did not produce enough income for the family.

Christopher thought Karen was unduly critical and demanding. The parties experienced such discord that in early 1999 they separated for several months. Christopher left the family home and went to live with his parents. He continued to visit with Sebastian during the separation.

The parties decided to attempt a reconciliation, and Christopher moved back into the family home. On December 4, 1999, Claudia was born. According to Karen, early in her pregnancy with Claudia, she read a sonogram report that gave the date of conception as March 13, 1999. When she saw that date, she realized immediately that Christopher was not the biological father of ²⁵⁶ the baby she was carrying.

She knew that another man, with whom she had had sexual relations during the parties’ separation, was the baby’s biological father. That other man, who did not know about , the pregnancy, wanted to continue the romantic relationship. In what she described as a decision favoring the welfare of her family, Karen “blew [the biological father] off,” figuring that “half a man was better than none.” During the pregnancy, Karen acted as if Christopher were the baby’s father, and did not tell him otherwise. She did not let the biological father know she was having a child.

It appears that he never learned that she was pregnant and that they had no contact after their sexual relationship in early 1999. Christopher did not know that Karen had been sexually involved with another man during their separation. For that reason, and because Karen acted as if Christopher were the father, Christopher assumed he was the baby’s biological father. He was present at Claudia’s birth, as he had been at Sebastian’s birth, and chose her name, as he had chosen Sebastian’s name.

At the moment of Claudia’s birth, Christopher had a fleeting thought that he might not be her father, because she did not look anything like him. He put that thought out of his mind, however, and assumed from then on that he was Claudia’s biological father. Within 24 hours of Claudia’s birth, Karen signed an affidavit of parentage, identifying Christopher as Claudia’s father. Karen also named Christopher as Claudia’s father on her birth certificate.

Karen, Christopher, Sebastian, and Claudia (and at times Karen’s other children) lived together and functioned as a family. Christopher thought he was Claudia’s biological father and treated her as such. Karen acted as if Christopher were Claudia’s biological father, despite her knowledge to the contrary, and did not disclose to anyone that he was not. To Claudia, Christopher is her father, and she has never known any other father.

Christopher and Claudia bonded as father and child, and Claudia and Sebastian bonded as siblings. The ²⁵⁷ parties participated equally in child rearing. Karen’s mother also helped out with the children. Christopher’s parents and brother were active in the children’s lives, although they were not as involved as Karen’s mother was.

Eventually, the relationship between Karen and Christopher spiraled downward, becoming (in both of their words) “toxic” for everyone in the family. As Christopher put it, Karen was “prone to endless lecturing that would start whenever she felt like it needed to start. It would go on until she was exhausted ... sometimes it would go for two or three hours at a time, [a]nd I would sit there in a chair and listen to her.” Karen would curse, call him names, complain that he was a poor provider and an “Adult Child of Alcoholics” who was in denial about that situation, and that he was a bad father and a poor example to his children. Eventually he withdrew, avoiding Karen and “stay[ing] out of her way completely.” He “was no longer interested in hearing her opinions of [him].” For two months in the summer of 2003, the parties again separated, and Christopher left the family home.

He visited the children during the separation. On September 1, 2003, at Karen’s suggestion (which Christopher took as a gesture of reconciliation), Christopher moved back into the family home. The next day, in the Circuit Court for Baltimore County, Karen filed a complaint for custody of Sebastian and Claudia. She alleged that she and Christopher were the children’s parents and asked the court to award custody to her.

The parties continued to live in the same house, which became something of a battleground. On February 23, 2004, Christopher filed a countercomplaint seeking custody of the children. Sometime in late April, Christopher became romantically involved with Rebecca, whom he met through his activities as cub scout den leader for Sebastian’s troop. Rebecca’s son is Sebastian’s best friend and belongs to the same troop. ²⁵⁸ On April 29, 2004, Christopher’s 35th birthday, the parties got into a heated argument.

Karen taunted Christopher, suggesting that she knew something that made her certain she would prevail in the custody case. When Christopher pressed her about what made her so sure of her position, she responded that Claudia was not his biological child. To Karen’s thinking, for that reason, a court deciding the case would grant her custody of Claudia and also of Sebastian, in order to keep the children together. On May 25, 2004, while Christopher was at work, Karen brought a moving van to the family home and removed most of the furniture and household items.

That same day, she and the children moved to Avalon. For some time prior to the move, Karen had told Christopher she intended to move to New Jersey. However, she did not tell Christopher the date of the move or that it was about to occur. She also did not tell him that she intended to move the children to New Jersey as well.

Christopher found out that Karen in fact was moving when a neighbor called and told him that a moving van was in front of the house and that furniture was being moved out of it. He went home and confronted Karen. She would not tell him where she was moving or disclose the whereabouts of the children. Christopher went to Sebastian’s school and discovered that Karen already had withdrawn him, even though the school year was not finished.

Claudia already had been taken out of her daycare. Karen did not give the children any advance word of the move. They learned about it when it happened. As Karen readily conceded at trial, she did not move to Avalon for any particular reason, other than she thought it was a nice small town that had a healthy tax base and therefore provided ample amenities to its citizens.

Karen did not move because of work. She quit her waitressing job in Howard County voluntarily and did not have a job or any job prospects lined up in Avalon. For three months after the move (during the entire summer of 2004), Karen did not look ²⁵⁹ for work as a waitress. She did some part-time gardening work and lived on money she had saved.

Karen did not have any family connections in Avalon. Her children from her prior marriages did not live there. Her adult daughter was living in Catonsville and her adult son, who was married, was living in Florida. Karen’s mother lived in Baltimore.

(After the move, Karen’s mother spent several days a week in Avalon, driving back and forth from Baltimore, apparently to help Karen.) For a week after the move, Christopher could not contact the children. On June 1, 2004, Karen called and let him speak to the children. For the next three months, however, Karen would not disclose her location, the children’s location, or anything about their whereabouts other than that they were somewhere in New Jersey. Karen’s mother would not give Karen’s address or telephone number to Christopher.

During that time, Christopher’s only contact with the children was by cellular phone. Karen monitored the telephone calls and had specific rules about what the children could and could not discuss with Christopher. She told Christopher that she would cut off the telephone calls if he questioned the children about where they were living. Karen offered to bring the children to Baltimore for visitation, but only if she supervised it.

Christopher refused those offers. On July 8, 2004, Karen filed a request for DNA testing to determine Claudia’s paternity. The court granted the testing request. Thereafter, Karen took Claudia to Baltimore to have her blood drawn.

She told Claudia, who was four years old, that the blood work was part of a routine doctor’s visit. In late July, Christopher received in the mail an invitation to a play in which Sebastian was to be performing. The invitation bore an Avalon, New Jersey, postmark. Later during the summer, one of Sebastian’s friends from Catonsville went to visit him in New Jersey.

Christopher got a “rough idea” from that boy of where Karen and the children were living in Avalon. He drove there, with Rebecca, and saw a house with toys outside that he recognized as belonging to ²⁶⁰ the children. There was no one home at the time, however. Christopher drove back to Catonsville without seeing the children.

Thereafter, Christopher told Karen that he knew where she and the children were living. At that point, which was about a month before the trial, Karen invited Christopher to visit the children in Avalon, but under her supervision. Also, about 90 days after the move, Christopher visited the children at Karen’s daughter’s house in Catonsville. That visit also was closely supervised by Karen and her two adult children.

On September 4, 2004, Karen took a job as a waitress at a restaurant in Avalon. On September 29, 2004, two days before trial, the DNA testing results were completed. They showed that Christopher “c[ould] be excluded as the father” of Claudia, and they were admitted as the court’s exhibit at the beginning of the trial. As of the time of trial, Claudia had not been told that Christopher is not her biological father, nor had Sebastian been given that information.

The information had been revealed to Karen’s mother and Christopher’s parents. 2 At trial, Karen was asked to identify Claudia’s biological father. She refused to do so. Sebastian finished the 2003-2004 school year at Avalon Elementary School, and was in third grade at that school when the trial took place. School records and testimony of the parties showed that he was doing well in that school, and that he also had been doing well in Westowne Elementary School, in Catonsville, which is the school he attended before the move and would attend if he were living with Christopher.

Claudia was enrolled in a Christian preschool in Avalon. She had been enrolled in a church day care center in Catonsville, which she would again attend if she were living with Christopher. ²⁶¹ Karen signed a long-term lease on the house she and the' children moved into on May 26. The house has three bedrooms and plenty of room for the children. The house Christopher lives in with Rebecca and her child has four bedrooms. 3 At the conclusion of the evidence, and after hearing argument of counsel, the court made findings and rendered a decision.

The court found that Karen is a fit parent. It further found that there were exceptional circumstances that rebutted the presumption that it would be in Claudia’s best interest to be in the custody of Karen, her only identified biological parent. The court explained its exceptional circumstances finding as follows: Claudia, the testimony has revealed, is not the natural child of ... [Christopher], It’s [Karen’s] argument that that kicks him out of the ballpark because in order, according to counsel for [Karen], in order for him to come into consideration at all, the testimony has to be that either [Karen] is not fit or there were exceptional circumstances.... Most of the cases, frankly, deal with grandparents or foster parents.

And really, this is an unusual case. There’s really no case on point where you’re dealing with a father of the child who all along thought he was the father, acted as this child’s father, was ... on affidavits of paternity and was held out to the community and to this child and to [Karen] as this child’s father.... As a technical matter, [Christopher] is, in fact, not the biological father because of DNA testing that was done. The Court is disturbed that the only time the issue of paternity came up and the request to this Court for DNA testing was when [Karen] was seeking sole custody of this child.

And it’s this Court’s opinion that she was using that as a leg up to establish the higher standard, or an uneven standard to shift the burden to [Christopher] in order to ²⁶² give her a leg up in the custody of Claudia, then believing that the Court would not want to split two children up. So that being said, I’m going to look at this case both ways: First, going through whether or not I believe that [Christopher] has met any of the exceptional circumstances, and then, secondly, to go through the physical [custody] factors. First off, in terms of the eases that deal with a parent and a nonparent ... I do find for the record both under the general physical custody factors, under the best interests standard, that both parents are fit parents and are capable parents.

Both parents clearly love their children, and I find that they’re both fit in terms of one of the factors that this Court must consider in the best interests. So that being said, in looking at [Christopher] as the nonbiological parent, then the next question is are there any exceptional circumstances that have been proven to this Court that would then warrant the Court to ... look at the best interests. ‘Cause in reviewing the third party cases, before I can get to the best interest standard, this Court has to find that there are exceptional circumstances ... elevating [Christopher] to a more equal footing with [Karen]. This Court has looked at the following factors in determining whether there [are] exceptional circumstances. First I looked at the nature and strength of the ties between the child and the third party, which would be [Christopher].

There are clearly very strong ties between them under the caselaw and under ... the facts of this case clearly, he acted as this child’s father, thought he was this child’s father, was listed on an affidavit of paternity as this child’s father and clearly acted in the role of this child’s father. And all the testimony’s been that they have a good relationship; they have a good bond, that Claudia loves her father. So there’s that factor which weighs on the side of [Christopher] in terms of the exceptional circumstances. I also find that he clearly has a very intense and genuine desire to have this child, in spite of the fact that it is not his biologic [sic] child.

He could have come into this Court and ²⁶³ said it’s not my child, I’m not interested in custody, I just was [sic] Sebastian and then I don’t have to pay child support. That’s clearly not his motive. So although there’s been testimony that there’s been, there is clearly a strong bond for Claudia with [Karen], I believe that is true with [Christopher], and I think he is genuine in his desire to have custody of this child. I’ve looked into the stability and certainty of the child’s future, and the custody of the parent and whether or not that weighs in, and I feel that that does weigh in.

I think [Karen] has shown a pattern of immaturity and has looked out for what appears to be her own best interests, which she even admitted to in testimony, that in looking at her relationships in the past, that in many cases she’s put her interests over the children. And, frankly, this Court finds that in this particular case, by abruptly moving the children to New Jersey, I think she put her best interests over the children and has not created a stable and certain environment for them in New Jersey. I have looked at the — let me just go through. I had, this Court has considered the emotional effect on changing custody.

Both parties have really had custody of the child — up until May 25th or 26, when [Karen] abruptly removed the children unilaterally for what this Court considers to be her best interests, not in the children’s best interests. The fact that Avalon is a nice small town, safe community with good schools, is not sufficient, in the best interests of the children.... [T]his Court does find for the record that there are exceptional factors in this case.... [T]here are exceptional circumstances based on [Christopher’s] relationship with Claudia, his care of Claudia, the fact that he’s been the father, and the only time that his paternity was ever challenged was when this Court finds [Karen] was getting a leg up on trying to seek sole custody in this case.... The court then addressed what custody determination would be in the children’s best interests. It considered the fitness of the parties; their characters and reputations; the desire of ²⁶⁴ the parents and any agreements between them; the potential for maintaining natural family relations; the material opportunities affecting the children’s future lives; the age, health, and gender of the children; the residences of the parties and potential for visitation; and the length of the separation of the parties.

The court found that Karen had acted selfishly, placing her interests above those of the children, treating Christopher’s role in their lives as unimportant, and attempting to alienate the children from him. The court concluded that it would be in the children’s best interests for custody to be in Christopher, with visitation for Karen. The court memorialized its decision in a written order. 4 When necessary, we will add factual detail in our discussion. DISCUSSION (a) Appellate review of a trial court’s decision in a child custody case is governed by Maryland Rule 8 — 131(c), which pertains to the review of actions tried without a jury.

Davis v. Davis, 280 Md. 119, 122 , 372 A.2d 231 (1977) (discussing Maryland Rules 886 and 1086, the predecessors to Maryland Rule 8-131(c)). We review the case on both the law and the evidence: we will not set aside the judgment of the trial court unless it is clearly erroneous, and we give due regard to the opportunity of the trial court to judge the credibility of the witnesses. Id. In summary, when we scrutinize factual findings, we apply the clearly erroneous standard; when we review issues of law, we do so de novo; and, finally, we disturb the trial court’s ultimate conclusion on the question of custody “only if there has been a clear abuse of discretion.” Id. at 125-26 , 372 A.2d 231 . ²⁶⁵ In the area of child custody, the law recognizes a rebuttable presumption that the child’s best interests will best be served by custody in a biological parent, over a third party; and a third party bears the burden of showing the contrary.

Ross v. Hoffman, 280 Md. 172, 178 , 372 A.2d 582 (1977). The presumption arises from the judicially accepted belief that “the affection of a parent for a child is as strong and potent as any that springs from human relations and leads to a desire and efforts to care properly for and raise the child, which are greater than another would be likely to display.” Melton v. Connolly, 219 Md. 184, 188 , 148 A.2d 387 (1959). In a disputed custody case between a private third party and the biological parents of a child, the presumption in favor of custody in the biological parents can be rebutted by a finding either of lack of fitness on their part or the existence of “extraordinary circumstances ... which are significantly detrimental to the child remaining in the custody of the [biological] parent or parents.” McDermott v. Dougherty, 385 Md. 320, 325 , 869 A.2d 751 (2005). If the court makes neither such finding, the presumption remains, and custody must be awarded to the biological parents (or parent).

If the court makes either such finding (parental unfitness or exceptional circumstances), the presumption is rebutted and the court then must resolve the custody dispute by applying the best interest of the child standard. Id. See also Shurupoff v. Vockroth, 372 Md. 639, 661 , 814 A.2d 543 (2003) (holding that, in custody dispute between a natural parent and a third party, it is presumed that the child’s best interest lies with parental custody; presumption can be rebutted by showing unfitness or that extraordinary circumstances exist that would make parental custody detrimental to the child’s best interest); Sider v. Sider, 334 Md. 512, 531 , 639 A.2d 1076 (1994) (holding that, “[w]hen the dispute is between a biological parent and a third party, it is presumed that the child’s best interest is subserved by custody in the parent. That presumption is overcome and such custody will be denied if (a) the parent is unfit to have custody, or (b) if there are ²⁶⁶ such exceptional circumstances as [to] make such custody detrimental to the best interest of the child”); Hoffman, supra, 280 Md. at 178-79, 372 A.2d 582 (same).

The circumstances that will rebut the presumption that a child’s best interests are served by being in the custody of his biological parent, as opposed to in the custody of a private third party, must be “extraordinary, exceptional, or compelling ... [such as] that require the court to remove the child from the natural parent[ ] in order to protect the child from harm.” McDermott, supra, 385 Md. at 357 , 869 A.2d 751 . Although the parental unfitness/exceptional circumstances test was recognized before the Court of Appeals decided Hoffman, see Melton, supra, 219 Md. at 188-89 , 148 A.2d 387 ; Trenton v. Christ, 216 Md. 418, 420 , 140 A.2d 660 (1958); Ross v. Pick, 199 Md. 341, 351-52 , 86 A.2d 463 (1952), the Hoffman Court reviewed and synthesized the factors that may be relevant to the decision whether parental custody will be detrimental to a child’s best interest, and described them: The factors which emerge from our prior decisions which may be of probative value in determining the existence of exceptional circumstances include the length of time the child has been away from the biological parent, the age of the child when care was assumed by the third party, the possible emotional effect on the child of a change of custody, the period of time which elapsed before the parent sought to reclaim the child, the nature and strength of the ties between the child and the third party custodian, the intensity and genuineness of the parent’s desire to have the child, [and] the stability and certainty as to the child’s future in the custody of the