S.F. v. M.D.

EYLER, Judge. Appellant, S.F., and appellee, M.D., both females, began living together in 1991 in a committed domestic relationship. On September 30, 1994, appellee gave birth to a child following artificial insemination. The parties separated in 1997.

This case involves appellant’s right to visitation with the minor child. The circuit court, faced with a difficult question, denied visitation. Facts Appellant filed a complaint in the Circuit Court for Montgomery County against appellee, seeking custody of the minor child, or in the alternative, visitation. Appellant, in the portion of her brief setting forth the facts, largely tracks the circuit court’s opinion.

We shall do the same. Appellant and appellee began dating each other in 1990 and commenced living together in 1991. Appellant, in 1990, decided she wanted to have a child, but all efforts, including six in vitro fertilizations, failed. Appellee supported appellant in her efforts.

Because appellant’s efforts failed, and because the couple wanted to have a child to rear together, appellee decided to become pregnant. Appellant opened a sperm bank account and obtained sperm from an anonymous donor. Appellant, a licensed medical doctor, personally inseminated ap-pellee on several occasions, and ultimately, appellee became pregnant. On September 30, 1994, appellee gave birth.

After the birth, the parties jointly participated in rearing the child, including the selection of pediatricians and preschool. Appellant, a psychiatrist, and appellee, an epidemiolo ¹⁰³ gist, arranged their schedules to work out of the home so that one or the other was almost always available to care for the child. Appellee was the primary care giver, but for the first three years appellant participated in feeding, playing with, bathing, and holding the child. Appellant developed a bedtime ritual, whereby she would read for one-half hour to forty-five minutes to the child, following which appellee would say good night.

The parties experienced problems in their relationship as early as 1992 or 1993, and they went to therapy on at least two occasions. In September 1997, appellee moved out of the family home and took the child with her. The parties agreed on a liberal visitation schedule. Beginning in December 1997, according to appellee, the child exhibited changes in behavior.

The child had difficulty getting to sleep at night, began clinging to appellee, and was frequently whiny. The child also displayed “oppositional” behavior to appellee, and in the Spring of 1998, the child’s teachers reported to appellee that the child was exhibiting “tantrums or meltdowns.” During this time frame, appellee discontinued appellant’s ritual of bedtime reading. Appellee discussed the child’s behavior with appellee’s neighbor and friend, K.H. 1 , but did not take any other action. Appellant indicated that she did not observe any such symptoms when the child was with her, but acknowledged that appellee told appellant that the child was having trouble sleeping.

On May 27, 1998, the parties argued over a bicycle, and appellee refused thereafter to let appellant visit with the child. According to appellee, the child’s whiny and clingy behavior stopped within two weeks, and the bedtime problems resolved themselves in three months. After school began in September, there was no abnormal behavior reported by the child’s teachers. ¹⁰⁴ In December 1998, the circuit court, after a pendente lite hearing, ordered a resumption of visitation between appellant and the child so that their relationship could be evaluated by a court-appointed psychologist, Dr. Benjamin Schütz. Within a few weeks of resumption of the visitation, most of the behavior problems returned.

The case was tried in March of 1999, and following the trial, the circuit court took the matter under advisement. On or about May 7, 1999, appellee terminated all visitation between appellant and the child, claiming that the child’s behavior had worsened. The circuit court ordered a follow-up evaluation by Dr. Schütz, and additional testimony was taken on June 8 and July 2, 1999. According to Dr. Schütz, the child’s teachers reported that the meltdowns or tantrums had stopped in April or May 1999, and the child had no problems interacting with the child’s peers.

There was testimony by appellee; by K.H.; and by Dr. Schütz, based on information supplied to him by Dr. Joan Evelyn Kinlan, the child’s psychiatrist, however, that the child had developed a “rigid fantasy role-playing wherein [the child] would assume the role of another person or animal and assign roles to people around [the child] and interact only within those roles.” Appellant testified that she did not observe this behavior. According to appellee, when visitation with appellant terminated in May 1999, the fantasy play ceased. The circuit court, in its opinion on August 10, 1999, made the following findings and conclusions. First, the court stated that appellant neither presented evidence nor argued that she was entitled to custody of the child.

The court stated that the only issue was one of visitation and that the case was to be decided under Maryland law regarding third party visitation rights. Consequently, the court concluded that the standard for determining whether to grant visitation to appellant, a third party, was the best interest of the child. See Evans v. Evans, 302 Md. 334 , 488 A.2d 157 (1985). Second, with respect to the relationship between appellant and the child, the circuit court found that appellant served ¹⁰⁵ “the functional role of a parent in relation to [the child] for the first three years eight months of [the child’s] life.” The parties lived together as a couple and jointly decided to have a family.

Appellant was an integral part of the prenatal care of appellee, and after the child was born, appellant played a significant role in the child’s care, demonstrating above-average parenting skills. Third, the court found that the relationship between appellant and the child, in the past, had been beneficial to the child. Dr. Schütz found nothing inappropriate, detrimental, or negative in appellant’s conduct with the child. Fourth, the circuit court found that appellant was a fit and proper person to have visitation with the child.

There was no evidence of any abuse, neglect, or adverse conduct by appellant toward the child. Fifth, and determinative of the outcome, the circuit court found that it was not in the best interest of the child to continue a relationship with appellant. The court acknowledged that this was a difficult question, and regardless of the decision, there would be significant adverse consequences to the child. The court concluded as follows: If visitation is terminated completely, [the child] will lose a significant positive relationship with someone who has served as a parent for most of [the child’s] life. [2] This may have a long-term negative effect on [the child] because, according to Dr. Schütz, [the child] may have acquired a negative learned response from a beneficial relationship being easily excised and, according to Dr. Pee-bles [the child’s pediatrician], the security of [the child’s] relationship with the defendant may be jeopardized.

On the other hand, the evidence in this case is uncontro-verted that when there is visitation between the plaintiff and [the child] significant behavioral problems emerge in ¹⁰⁶ [the child], and when the visitation is terminated completely, all of these problems disappear. It is also uncontroverted that when visitation was terminated with the plaintiff, [the child] expressed no sense of loss, exhibited no signs of depression and did not ask to see the plaintiff. When the visitation occurred between December 1997 and May 1998, [the child] had difficulty going to sleep, was clingy, whiny, oppositional, tantrums and checking behavior at school and problems playing with peers. When the visitation was resumed in December 1998 to March of 1999, the same symptoms reappeared, except for the checking behavior.

In addition, the re-emergence of the symptoms in December of 1998 was unrelated to the frequency or duration of visitation because the later visitation schedule was significantly different than the visitation schedule for the earlier time period. Dr. Schütz did opine that the aforementioned behavior problems of [the child] were stress-related and could be ameliorated by a proper visitation schedule, counseling of the parties to support both relationships and better communication between the plaintiff and the defendant. However, of greater importance is [the child’s] most recent behavior. In April and May of 1999, [the child’s] temper tantrums and oppositional behavior and peer problems at school disappeared. [The child] became [the child’s] old self.

At home, though, [the child] began exhibiting a rigid fantasy role play when dealing with [the child’s] mother and [the child’s] neighbor. In other words, [the child’s] behavioral problems mutated into what Dr. Schütz described as a rigid systematic refusal by [the child] to engage [the child’s] mother except through a rigid fantasy role play. ¹⁰⁷ Dr. Schütz had never seen a child do this in his career and had never seen the level of intensity so severe as in this case. [The child’s] behavior was now clearly dysfunctional. Dr. Schütz was also at a loss to explain the cause of [the child’s] behavior. He could not link the conduct of either plaintiff or defendant to [the child’s] symptomology.

Dr. Schütz concluded that unless things change, [the child] simply cannot sustain relationships with both plaintiff and defendant at this time. He was not very hopeful about any change in the current contacts because of two past failed therapies between the parties. Finally, when the defendant again terminated the plaintiffs visitation with [the child] in May of 1999, the rigid fantasy role play disappeared. Therefore, the Court finds that a resumption of the visitation between the plaintiff and [the child] will have a severe and detrimental effect on [the child] that outweighs the benefits of continuing such relationship.

I must emphasize that nothing the plaintiff has said, done or not done has caused this detrimental effect. Indeed, I can find no fault with the manner in which the plaintiff has conducted herself in her relationship with [the child]. The plaintiff has acted always as a loving and caring parent toward [the child]. Unfortunately, Dr. Schütz was unable to determine the cause of [the child’s] behavior and its change from stress-related to dysfunctional.

Without the cause identified, the cure cannot be prescribed. Thus, a resumption of visitation will, in all likelihood, result in a return of [the child’s] dysfunctional behavior. Accordingly, the Court concludes that it is not in the best interest of [the child] for the Court to order any visitation with the plaintiff, [S.F.]. ¹⁰⁸ The plaintiffs complaint for custody and visitation will be denied. The defendant’s request for attorneys’ fees will be denied.

The plaintiffs request for sanctions for contempt will be denied. I have two postscripts. The first, my comments are going to be directed to the defendant, [M.D.]. Even though, [Ms. D.] or [Dr. D.], you have prevailed in this case, I urge you not to schedule any celebration party.

You have exhibited in my view a trial [sic] that [can] only be described as a pathological hatred for the plaintiff, pathological because it is extreme. In my view, it is not based on reality. It has also caused you to attempt in your testimony to rewrite the history of your relationship with the plaintiff and the plaintiffs relationship with [the child]. More seriously, Dr. Schütz was unable to identify the cause of [the child’s] behavioral problems, but I strongly suspect, although I cannot find from the evidence that it was your hatred of the plaintiff that leaked out to [the child] and caused [the child] to react in the way [the child] has to the visitation with the plaintiff.

I hope I am wrong, but if I am right, it is you who has destroyed a positive relationship with the plaintiff and [the child] and caused psychological trauma to [the child]. I urge you to enter counseling to explore this possibility so there is not a repeat of what has happened here regarding a future relationship for [the child]. It is for [the child’s] sake that I make these comments. Question Presented Appellant raises one question on appeal, which as rephrased by us, asks whether the circuit court’s findings were clearly erroneous and whether it abused its discretion in failing to grant visitation rights to appellant. ¹⁰⁹ Discussion We are fully aware that the Supreme Court of the United States and the Maryland Court of Appeals have recognized that a natural parent has a fundamental right regarding the care and custody of his or her child.

See Wisconsin v. Yoder, 406 U.S. 205 , 92 S.Ct. 1526 , 32 L.Ed.2d 15 (1972); Boswell v. Boswell, 352 Md. 204, 217 , 721 A.2d 662 (1998). Nevertheless, the best interest of the child may take precedence over a parent’s liberty interests in a custody, visitation, or adoption dispute. Id. at 219 , 721 A.2d 662 . Moreover, this court has held that “we are uncertain as to the character of the parental right at stake when the issue involves visitation rights rather than custody or the termination of parental rights.” Wolinski v. Browneller, 115 Md.App. 285, 302 , 693 A.2d 30 (1997). 3 In any event, a natural parent does not have a constitutional right to deny all visitation, if visitation would be in the best interest of the child.

Finally, from our reading of the case law, it is clear that a third party has no fundamental constitutional right to visitation. The issue before us is thus largely governed by family law, not constitutional law. In child custody and visitation cases, Maryland appellate courts have identified several factors to be considered by trial courts as appropriate under the circumstances, but the overriding determination is always the best interest of the child. See Boswell, 352 Md. at 219 , 721 A.2d 662 ; Wolinski, 115 Md.App. at 301 , 693 A.2d 30 .

In the case sub judice, that is the governing standard, and as explained below, presumptions and more specific statements of required showings which might be applicable in other cases are not applicable here. As appellant is neither a biological nor adoptive parent, the natural starting point for our discussion is Evans, supra, the seminal Maryland case involving third party visitation. In Evans , a stepmother sought visitation with her ex-husband’s son from an earlier marriage. 302 Md. at 335 , 488 A.2d 157 . ¹¹⁰ The Court of Appeals, in answering the question of whether a stepparent has a right to seek visitation, examined whether the grandparents visitation statute, Md.Code (1980 Repl. Vol), § 3-602(a)(4) of the Courts and Judicial Proceedings Article, precluded the possibility of visitation by other third parties.

Id. The Court of Appeals held that there was no statutory limitation on the jurisdiction of courts with respect to whom custody or visitation could be awarded. Id. at 343, 488 A.2d 157 . The substance of § 3-602 of the Courts and Judicial Proceedings Article, construed in Evans , presently appears in Md.Code (1999 Repl.Vol.), §§ 9-102 and 1-201 of the Family Law Article.

Section 1-201, dealing with the jurisdiction of equity courts, does not expressly limit to whom a court may award custody or visitation, the same as its predecessor. Additionally, since the Evans decision, by Acts of 1991, § 2, ch. 247, amending § 9-102 in a manner not here pertinent, the legislature stated that the grandparents visitation statute should not be construed to deny or limit visitation of other individuals. As a result, in Maryland, petitioners, when seeking custody or visitation, do not have the standing problem that frequently exists in other states. See, e.g., In re Guardianship of Z.C.W., 71 Cal.App.4th 524 , 84 Cal.Rptr.2d 48 , cert. denied by Crandall v. Wagner, — U.S. —, 120 S.Ct. 603 , 145 L.Ed.2d 501 (1999)(a non-biological, non-adoptive parent in a same sex relationship lacked