Radford v. Matczuk

Horney, J., delivered the opinion of the Court. This case involves the narrow but difficult problem of deciding whether the chancellor was correct when he struck from a divorce decree the previously granted right of a natural father to visit his teenage son, who has been in the custody of his mother since birth. The agreed statement of facts informs us that the parties to this appeal were married in 1946 while the father was in the Armed Forces. (The natural father is the appellant and the mother is the appellee).

The child was born in July of 1947, and in 1949 the mother obtained an absolute divorce from the father on the ground of adultery. The decree awarded custody of the child to the mother, subject to the right of the father to visit the child. The father saw the child only once in 1948, (though, according to the report of the probation department, he attempted to see the child again in 1950, but was repulsed by the mother). The father never contributed in any way to the support of the child.

In 1947 (two months before the birth of the child) the father was convicted of stealing government property, (and, according to the probation report, served a sentence of eight months and was dishonorably discharged from the service). The father, who ⁴⁸⁶ remarried in 1948, now resides in Dynchburg, Virginia. The mother also remarried in 1956, and in 1958 she and her present husband requested the father to consent to the adoption of the child by the stepfather. The father refused and immediately filed a petition to enforce his visitation rights.

The case was referred to a master, who, after a hearing at which he received only the testimony of the parties, referred the matter to the probation department of the division of juvenile causes for investigation and an impartial report. The substance of the report of the probation department, in addition to the facts heretofore related, shows, among other things, that both a sister of the natural father’s present wife and a cousin of the natural father, who reside in small row houses near the Pimlico Racetrack, would welcome the child to their respective homes so that the father might see him. The court officer characterized the relatives as friendly, pleasant and interested persons. One of them thought the child should have an opportunity to know his father, blamed the child’s mother for his indifference toward his father, and stated that the mother had refused to accept support for the child from the father.

The other relative, who saw the natural father infrequently and had not seen the child since he was a small boy, although she was ready to welcome father and son to her home, was apprehensive that the situation would be rather awkward, but was willing to try to make such visits a pleasant experience for all concerned. The mother and stepfather reside in an attractive two-story brick row house off of Docli Raven Boulevard. The court officer described the contrast between the environment of this home and those of the father’s relatives as “appalling.” The mother informed the court officer that the child had accepted her present husband as his father and that a close relationship had developed between them as was evidenced by the child’s better adjustment in school. The mother was convinced that the stepfather was “good for her son,” and for that reason wanted the adoption.

On the other hand, the mother emphasized that the natural father was a total stranger to his son and was convinced that visits by the father would not be good for the child. She was apprehensive that such visits would tend to ⁴⁸⁷ upset and confuse the child. The mother stated, however, that if the court should rule otherwise, she would want the visits to be at her home because she objected to the drinking that occasionally took place in the homes of the natural father’s relatives. The court officer found the child to be a happily-adjusted, mannerly and friendly boy who had accepted the stepfather as his father and had no desire to even see his natural father, let alone to visit him in the homes of people unknown to him.

While it was apparent that the child did not know why his mother and father had separated, he stated that his father “wasn’t much of a man to do that to my mother.” According to the court officer it was evident that the attitude of the child had been influenced by the mother, if not by commission then by omission. The court officer thought that as the child matured and became more independent in his thinking, he might desire to know his father, but at the present time she believed that it would not be conducive to his best interests to force on him “a relationship with a total stranger [meaning the natural father] in the home of strangers [meaning the relatives of the father].” There was nothing in the record to indicate that the natural father had continued either an immoral or criminal way of life. On the probation report and the testimony previously taken, the master concluded, as did the court officer who made the investigation, that the best interests of the child would be promoted by not enforcing the visiting rights of the father, and recommended that the petition therefor be dismissed and the original decree modified. In his report, the master also informed the chancellor that the mother was strongly opposed to the child having any contact with the father, that the child had never known the father and that the father during a ten-year period had made no further efforts to see the child.

On the report of the master, the chancellor, having heard the exceptions of the father thereto, overruled the exceptions, dismissed the petition and modified the divorce decree by striking out the provisions that the father should have the “right to see” the child “at all reasonable times.” In effect, the father makes two related contentions: (i) that a parent whose child is in the custody of another should have ⁴⁸⁸ a right to visit him unless the best interests of the child would be endangered by such contact; and (ii) that a parent, even though he has failed to exercise the visitation privileges previously granted him by a decretal order, does not lose the privilege thus afforded unless the parent becomes unfit to associate with the child. The first contention undoubtedly states the general rule. In 2 Nelson, Divorce, § 15.26 (2d ed.), it is said: “A parent whose child is placed in the custody of another person has a right of access to the child at reasonable times. The right of visitation is an important, natural and legal right, although it is not an absolute right, but is one which must yield to the good of the child.

A parent’s right of access to his or her child will ordinarily be decreed unless the parent has forfeited the privilege by his conduct or unless the exercise of the privilege would injuriously affect the welfare of the child, for it is only in exceptional cases that this right should be denied. And in the absence of extraordinary circumstances, a parent should not be denied the right of visitation, even though the parent has been guilty of marital misconduct. But when it is clearly shown to be best for the welfare of the child, either parent may be denied the right of access to his or her own child.” See also Keezer, Marriage and Divorce, § 723 (3rd ed. Moreland) ; Sayre, Selected Essays on Family Law, p. 616; 17A Am.

Jur., Divorce and Separation, § 829. The Maryland cases—though it seems the question of visitation rights instead of arising as a separate and distinct action are usually involved with the whole question of custody rights'—are to the same effect. In Maddox v. Maddox, 174 Md. 470 , 199 Atl. 507 (1938), where the holding was that the best interests of the children required that they be placed in the custody of the paternal grandmother—instead of an institution as the chancellor had decreed—with reasonable visitation privileges to the mother, the Court had occasion to say, at p. 476: ⁴⁸⁹ “While the court usually does not deny to a parent the opportunity to visit the child, and occasionally to have temporary custody at suitable times, nevertheless even this comfort may be denied the parent, if the best interest of the child is subserved.” But an examination of the cases involving visitation rights— despite previous acts of misconduct, prior disobediences of decretal orders, repeated failures to make support payments and other derogatory circumstances—discloses that this Court, even though custody was denied, has never had an occasion to deny the right of visitation to an errant parent. See the line of cases beginning with Hill v. Hill, 49 Md. 450 (1878) [privilege of access to the child was reinstated for a mother who had been divorced for adultery] and ending with Hild v. Hild, 221 Md. 349 , 157 A. 2d 442 (1960) [right to have a child visit her was not denied to an adulterous mother who had married her paramour]. 1 In other jurisdictions it has been held that it would require the clearest kind of evidence ⁴⁹⁰ to justify a complete cutting off of visitation rights of a parent.

See, for instance, Leonard v. Leonard, 98 A. 2d 638 (Pa. Super. 1953). Since the courts ordinarily do not deny even an errant parent the right to visit a child at reasonable times unless the best interests of the child would be endangered by such contact, the problem in this case narrows still further to a determination of whether, on the facts in this case, the father has lost the previously granted privilege of access to the child by any present unfitness to associate with him. In essence, the mother relies on five factors which she contends indicate that the best interests of the child require that the father be barred from further access to the child.

These are (1) that the father was the “guilty” party in the original divorce; (2) that the father was convicted of a serious criminal offense; (3) that the child has declared a desire not to see or know his father; (4) that the father did not attempt to enforce his