Ross v. Hoffman

Orth, J., delivered the opinion of the Court. Once again the courts have been called upon to decide who shall have custody of a minor child. In such disputes it is ¹⁷⁴ always the child who is not only the innocent victim, but who has the most at stake. Caught in the wake of marital discord, or adult indiscretion, or economic adversity, the well-being of the child, both present and future, is usually profoundly affected by the court’s resolution of the private dispute over who shall be entrusted with its care.

In more primitive societies where the large kinship group is the basic societal unit, child custody problems are solved by leaving the child with the dominant clan. In our society today, however, the social mores do not provide an automatic answer to custody questions. See Comment, 73 Yale L. J. 151 (1963). I In Maryland, resolving child custody questions is a function of the equity courts.

The jurisdiction of a court of equity includes the custody, maintenance, visitation and support of a child. The court may direct who shall have the custody of a child, decide who shall be charged with its support and maintenance, and determine who shall have visitation rights. This jurisdiction is a continuing one, and the court may from time to time set aside or modify its decree or order concerning the child. Maryland Code (1974, 1975 Cum.

Supp.) Courts and Judicial Proceedings Article § 3-602. In exercising its jurisdiction over the custody of a child, the equity court performs two different but related functions: child protection and private-dispute settlement. See Mnookin, Child Custody Adjudication: Judicial Functions in the Face of Indeterminacy, 39 Law & Contemp. Prob. 226, 291 (1975).

Child custody disputes fall into two categories with respect to those seeking custody: disputes between the biological parents and disputes between a biological parent and a third party, often a relative but not infrequently a foster parent, consanguineously unrelated to the child. In performing its child protection function and its private-dispute settlement function the court is governed by what is in the best interests of the particular child and most conducive to his welfare. This best interest standard is ¹⁷⁵ firmly entrenched in Maryland and is deemed to be of transcendent importance. 1 In Burns v. Bines, 189 Md. 157, 162 , 55 A. 2d 487 (1947), quoting Barnard v. Godfrey, 157 Md. 264, 267 , 145 A. 614 (1929), we observed that the statute giving equity courts jurisdiction over the custody of children “is declaratory of the inherent power of courts of equity over minors, and [such jurisdiction] should be exercised with the paramount purpose in view of securing the welfare and promoting the best interest of the children.” We noted in Dietrich v. Anderson, 185 Md. 103, 117 , 43 A. 2d 186 (1945) that the statute has been so uniformly construed. We said in Butler v. Perry, 210 Md. 332, 342 , 123 A. 2d 453 (1956): “Of course, it is too elementary to be stressed that the welfare of the child is the controlling test in a custody case.” The best interest standard controls when the dispute over custody of a child is between his biological father and mother.

See Hall v. Triche, 258 Md. 385, 386 , 266 A. 2d 20 (1970); Goldschmiedt v. Goldschmiedt, 258 Md. 22, 25 , 265 A. 2d 264 (1970); Krebs v. Krebs, 255 Md. 264, 266 , 257 A. 2d 428 (1969); Orndoff v. Orndoff, 252 Md. 519, 522 , 250 A. 2d 627 (1969); Fanning v. Warfield, 252 Md. 18, 24 , 248 A. 2d 890 (1969); Shanbarker v. Dalton, 251 Md. 252, 257 , 247 A. 2d 278 (1968); Heaver v. Bradley, 244 Md. 233, 242 , 223 A. 2d 568 (1966); Snow v. Watson, 240 Md. 712, 713 , 213 A. 2d 748 (1965); Stimis v. Stimis, 186 Md. 489, 491 , 47 A. 2d 497 (1946). It also controls when the dispute over custody is between a biological parent and a third party. We said in Dietrich v. Anderson, supra, 185 Md. at 117 -118: This policy of the law could hardly be expressed with more clarity or emphasis than in the case cited ¹⁷⁶ in Kartman v. Kartman, 163 Md. 19, 22 , 161 A. 269 [1932], namely, Re Petition of Frank B. Bort, 25 Kan. 308 , 37 Am. Rep. 255 : “When the custody of children is the question... the best interest of the children is the paramount fact Rights of father and mother sink into insignificance before that.

Even when father and mother are living together, a court has the power, if the best interests of the child require it, to take it away from both parents and commit the custody to a third person. In other words, a court of chancery stands as a guardian of all children and may interfere at any time and in any way to protect and advance their welfare and interests.” (emphasis added). See DeGrange v. Kline, 254 Md. 240, 243 , 254 A. 2d 353 (1969); McClary v. Follett, Jr., 226 Md. 436, 441 , 174 A. 2d 66 (1961); Melton v. Connolly, 219 Md. 184, 188 , 148 A. 2d 387 (1959); Trenton v. Christ, 216 Md. 418, 420-423 , 140 A. 2d 660 (1958); Ross v. Pick, 199 Md. 341, 351 , 86 A. 2d 463 (1952); Piotrowski v. State, 179 Md. 377, 382 , 18 A. 2d 199 (1941). In parent-third party disputes, however, there is a twist to the application of the best interest standard.

It was the rule of the common law that parents have the natural right to the custody of their children, and it once was that, “as between mother and father, the primary right to the custody of children is in the father, since it is his duty to provide for the children’s protection, maintenance, and education.” Carter v. Carter, 156 Md. 500, 505 , 144 A. 490 (1929); See Dunnigan v. Dunnigan, 182 Md. 47, 51-52 , 31 A. 2d 634 (1943); Piotrowski v. State, supra, 179 Md. at 381-382 . Neither of these common law concepts is now viable in Maryland. Our decisions make clear, as we have indicated, that the right of a parent to the custody of the child would not be enforced inexorably, contrary to the best interest of the child, on the theory of an absolute legal right. 2 As ¹⁷⁷ between father and mother, the primary right to custody in the father has been abrogated by legislative enactment which, at the same time, affirmed the application of the best interest standard. Maryland Code (1957, 1970 Repl.

Vol., 1974 Cum. Supp.) Art. 72A, § 1. 3 Nevertheless, there persists in this State in a contest over the custody of a child, but always subject to the best interest standard, that part of the common law concept which declares that the right of either parent is ordinarily superior to that of anyone else. Ross v. Pick, supra, 199 Md. at 351 . We declared in Kartman v. Kartman, supra, 163 Md. at 23 : [C]ourts are bound, in determining the fate of children, and in fixing the environment which is thereafter to direct the course of their lives, to recognize the natural right of parents to the custody of their children, and unless convinced that it would be injurious to their welfare, to maintain the relationship which society has always recognized as the one most to be desired.

In Ross v. Pick, supra, 199 Md. at 351 , we set out this principle in the form of a presumption and in language ¹⁷⁸ which we have from time to time quoted and in content which we have consistently applied: Where parents claim the custody of a child, there is a prima fade presumption that the child’s welfare will be best subserved 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. 4 See DeGrange v. Kline, supra, 254 Md. at 242-243 ; McClary v. Follett, Jr., supra, 226 Md. at 442 ; Trenton v. Christ, supra, 216 Md. at 420 . We have indicated how the presumption may be rebutted. In Ross v. Pick, supra, 199 Md. at 351 , we pointed out that the ordinary entitlement of parents to the custody of their minor children by the natural law, the common law, and the statute, is not an absolute one and declared that the right “may be forfeited where it appears that any parent is unfit to have custody of a child, or where some exceptional circumstances render such custody detrimental to the best interests of the child.” This principle was recognized by us and applied prior to Ross, see, for example, Dietrich v. Anderson, supra, and Piotrowski v. State, supra, and thereafter, see, for example, McClary v. Follett, Jr., supra, and Trenton v. Christ, supra. See also DeGrange v. Kline, supra, and Melton v. Connolly, supra.

To recapitulate: the best interest of the child standard is always determinative in child custody disputes. When 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 such exceptional circumstances as ¹⁷⁹ make such custody detrimental to the best interest of the child. Therefore, in parent-third party disputes over custody, it is only upon a determination by the equity court that the parent is unfit or that there are exceptional circumstances which make custody in the parent detrimental to the best interest of the child, that the court need inquire into the best interest of the child in order to make a proper custodial disposition.

II The case subjtidice presents squarely wl. ether there were such exceptional circumstances as to make custody in the biological mother detrimental to the best interest of the child. A contest for the custody of Melinda Dawn Sterquel, now ten years of age, between her mother, Karen Ross and Mr. and Mrs. John Hoffman, who are not consanguineously related to the child, was decided by the Circuit Court of Baltimore City, Watts, J. presiding. By its order of 10 March 1976, that court directed that the Hoffmans have custody of the child, determined visitation rights and charged the mother with the child’s support. The mother noted an appeal to the Court of Special Appeals, which affirmed the judgment.

Ross v. Hoffman, 33 Md. App. 333 , 364 A. 2d 596 (1976). We issued a writ of certiorari. Evidence was adduced at the trial through the testimony of twelve witnesses. Mr. and Mrs. Hoffman, Albert T. Derivan, M.D., Irvin Kelbel, Judith Steglich and Reverend William Howard France, testified in behalf of the Hoffmans.

Dr. Derivan was the Medical Director for the Forbush Children’s Center of the Sheppard-Pratt Hospital. He was a member of the faculty of the Johns Hopkins University School of Medicine, on the staff of the Kennedy Institute and in private practice. His qualifications as an expert were stipulated by the parties. The chancellor remarked that Dr. Derivan was not hired to testify for the purpose of this case, that he was not testifying “in the traditional sense” but was asked to see the child by another doctor.

According to the chancellor, the witnesses “made it clear in Ms report that his findings were very objective and that he was not hired to ¹⁸⁰ testify for the Hoffmans.” Mr. Kelbel, a retired school teacher, had known the Hoffmans for 25 years and had been their neighbor for 12 years. Miss Steglich, only recently employed as an Adoption and Custody Investigator for the Department of Juvenile Services, made the custody investigation. Rev. France, an ordained minister in the Evangelical Methodist Church, and pastor of the Rosedale Community Church, was a neighbor of the Hoffmans and had known them about 16 years. Melinda attended the Sunday School of his church and was active in the Pioneers, a world-wide organization of girls and boys which met at the church every Friday.

Melinda’s mother, Mrs. Karen Ross, testified in her own behalf and, in addition, her husband, Robert Ross, Vanessa Moyd, Curtis Barnes, Virginia Barnes, his wife, and Rev. Robert R. Ross testified for her. Mrs. Ross also called Miss Steglich. Mrs. Moyd, a licensed practical nurse, was the mother’s supervisor at the nursing home and also knew her socially. Curtis Barnes was the father of Mrs. Ross.

Virginia Barnes married Mr. Barnes in 1962 and had been a supervisor with the Commercial Credit Company for 30 years. Reverend Ross, the father-in-law of Mrs. Karen Ross, was the administrator of the nursing home where Mrs. Ross was employed. It was stipulated by the parties that the chancellor not talk to the child "because of the sensitive nature of the proceedings and because the doctor talked to her.” The chancellor was of the opinion that in the circumstances he did not need to talk to her. . There is no question here with respect to the fitness of the parties to have the custody of the child.

The chancellor found that Mr. and Mrs. Hoffman were eminently fit to have custody of the child and was “equally emphatic and praiseworthy of Mrs. Ross,” stating “unequivocally” that he found “Mrs. Ross to be a fit and proper person to have custody....” Those findings were not disputed. Lowe, J., speaking for the Court of Special Appeals through a unanimous three judge panel, fairly summarized the evidence showing the facts and circumstances leading to ¹⁸¹ the contest over the custody of the child, Melinda. Ross v. Hoffman, supra, 33 Md. App. at 334-335 . We repeat Judge Lowe’s compendium in substantial part, amplifying it as necessary from the transcript of the proceedings in the trial court.

Karen Ross was twenty-one years of age when Melinda was born to her on 16 April 1967. Inasmuch as financial necessity required her to work, she retained Mrs. Hoffman as a “babysitter.” Melinda was three and a half months old when she was placed in the care of the Hoffmans by her mother. According to Mrs. Hoffman, at first Melinda stayed with her only at night, because Mrs. Ross was on the night shift. Mrs. Ross’s schedule of night work created a difficult situation, for she had to deliver Melinda to the Hoffmans late at night and, after working all night, pick the child up by 7:00 o’clock in the morning.

The obvious implication is that either Mrs. Ross received little or no rest or the child received proportionately little maternal attention. For a few weeks the mother picked the child up in the morning, and then, to overcome this fatiguing schedule, Mrs. Ross, at Mrs. Hoffman’s suggestion, permitted the child to stay with the Hoffmans both day and night throughout the working week “so the child would have proper care.” Mrs. Ross would reassume her parental role by taking her child on weekends and her days off. After about a month, the mother stopped taking the child even on weekends, and Melinda actually resided with the Hoffmans full time. Although Mrs. Ross’s working shifts varied between 1967 and 1971, the custodial arrangement apparently did not.

Furthermore, Mrs. Ross assumed a life style which, had she taken Melinda more often, would have been incompatible with the best interests of the child. She became involved with drugs and had several abortions. Because of the custodial arrangement, however, Melinda was never exposed to these undesirable undertakings. The child remained with the Hoffmans for over eight years.

Mrs. Hoffman testified: “Over the whole eight years I remember one week out of that whole eight years that [Mrs. Ross] had her for a week, and then maybe a different occasion, maybe over that period of time, maybe ¹⁸² once or twice, you know, overnight visits when she took her to her grandparents.” Mrs. Ross’s visits were irregular during the eight years and her support of the child sporadic. Sometimes it would be two or three months between visits and at other times Mrs. Ross would appear two or three times a week. The most she ever gave Mrs. Hoffman for Melinda’s support in any one year was about $540 and, in at least one year, she contributed nothing at all. After 1971 it appeared that a reformation may have occurred in Mrs. Ross’s way of life.

Although she changed her employment on three occasions between 1971 and 1974, she finally settled upon employment at a nursing home. She there met her present husband whom she married on July 12, 1975. Mrs. Ross admitted that from the time Melinda was less than a year old the child resided with the Hoffmans “on a regular basis” and that she made no effort to reclaim her daughter for eight and a half years. Then in 1975, having taken the child for the Labor Day weekend, she returned her to the Hoffmans only when the Hoffmans obtained a court order on 11 September 1975 directing the return of Melinda to them and controlling further visitation by the Rosses.

According to Dr. Derivan, the effect of the child being in the complete care of the Hoffmans for eight and a half years from the time she was a few months old was that she viewed “her primary source of nurturents as coming from Mrs. Hoffman.... The child’s tie [was] psychologically united with Mrs. Hoffman, so that the biological tie [was not] a primary concern.” When the mother attempted to reclaim the child, the child’s reaction “was one of emotional upheaval. She was under emotional stress.” Melinda told the Doctor that she had “only one problem. I don’t know who is taking care of me all the time.... [I] used to have one last name, then I have two.

Now I wonder if I have any at all.” She said that she tried not to worry because “I get bad dreams,” which she could not or would not describe. Although the Doctor indicated that the child’s emotional upset was “caused more by her fear of abandonment by one or both of the mothers, and not by a fear that she [would] be ¹⁸³ removed from the Hoffman to the Ross house,” he did not feel that it was in the best interests of the child to place her in the custody of her biological mother because the child viewed Mrs. Hoffman psychologically as the mother. Melinda indicated to Miss Steglich that she recognized Mrs. Karen Ross as her mother and Robert Ross as her stepfather, but referred to them as the ones “responsible for all this trouble.” Both Dr. Derivan and Miss Steglich recommended that the child remain in the custody of the Hoffmans at the present time. It is manifest that the case was fully tried by both sides.

From the wealth of evidence adduced, the chancellor made factual findings. Mrs. Hoffman was “the primary source of the nurturing of this child’s development” and she was “psychologically the parent.” Melinda viewed Mrs. Hoffman as her “primary caretaker.” There was a bond of mutual attachment between the ehild and Mrs. Hoffman which enabled the child’s development to proceed satisfactorily, giving the child stability and emotional well-being. Although Melinda appeared to Miss Steglich to be “very shy and quiet and somewhat confused” when interviewed, while in the Hoffman home she was “quite relaxed and very talkative,” referring affectionately to her “brother,” the Hoffman’s son. The home of the Hoffmans was clean and attractive.

Melinda had her own room and playroom with many toys and educational materials available to her. Mrs. Hoffman saw that Melinda went to church regularly, not only on Sunday but on Friday nights for the meetings of the Pioneers, which the chancellor thought was “a wholesome thing, which will continue if the child remains with the Hoffmans.” Mrs. Hoffman was also active in the P.T.A. and, unlike the mother, showed an interest in Melinda’s school. Mrs. Hoffman was “the kind of person that will continue to be very liberal in allowing visitation rights with Mrs. Ross and the grandparents.” He was satisfied that “Mr. and Mrs. Hoffman had reared Melinda in a proper manner with love and security and were capable of continuing to do so in the future.” ¹⁸⁴ On the other hand, the chancellor had serious doubt that the Rosses had really actively assessed the impact of the move of the child from the Hoffman home, and what effect it would have on Melinda. It may be, the chancellor noted, that the mother was acting upon her own guilt feelings rather than considering the needs of the child.

He found it unclear if the Rosses considered that a change of custody would indeed be in the child’s best interest. He found that Mrs. Ross had not really involved herself with her daughter, so that it was Mrs. Hoffman who had given the child the mothering and the nurturing rather than the biological mother. The chancellor said: [W]e know what this child can do in the home of the Hoffmans. She is well-developed and healthy, and if we change the custody, we are not sure whether Mrs. Ross and her new husband and this child can interact meaningfully with her.

What the relationship with the child would be with Mrs. Ross [is unknown] and the court feels, as Dr. Derivan feels, maybe we shouldn’t risk this at this time, (emphasis added). The chancellor observed that Mrs. Ross had her own growing up to do in terms of her marriage and believed that it might be damaging to thrust the child into that milieu at this time. He said: “I don’t feel at this time we should thrust this child into the new environment and take her out of the love and environment she has.” He found that “[t]he only reason Mrs. Ross has presented [for a change of custody] is that she is the natural mother.” The chancellor did not .find this controlling in the circumstances. He referred to the length of time Melinda had been away from her mother and the long period which had elapsed before reclamation was sought.

He said that “it is a little late to make any serious uprooting of this child from Mrs. Hoffman.” He concluded “that at this time it would not be in the best interest of this child to change custody.” The chancellor issued a decretal order on 10 March 1976 which granted permanent custody to the Hoffmans with ¹⁸⁵ liberal visitation privileges to Mrs. Ross, and directed Mrs. Ross to pay the Hoffmans $20 a week for the support of the child, commencing 90 days from 8 March. All was subject to the further order of the court. Ill The precise question before us is whether the judgment of the Court of Special