Skeens v. Paterno

ADKINS, Judge. Although this suit began as a battle about adoption, it is now essentially a dispute about visitation rights of the father and paternal grandparents of an illegitimate child. On January 21, 1983, appellant Debra Skeens, then an unmarried minor, bore a child. The father was appellee Jeffrey Paterno, an enlisted member of the United States Navy.

Debra declined Jeffrey’s offer of marriage. Prior to the child’s birth, she and her parents, appellants Edward and Dorothy Skeens, had made plans to place the child for adoption. Three days after the child’s birth, Jeffrey sued Debra (sometimes denominated Deborah) and her parents in the Circuit Court for Prince George’s County. Jeffrey sought to enjoin Debra and her parents from proceeding with or engaging in any suit relative to the child’s adoption.

He also requested custody of the child. In the course of a plethora of subsequent judicial activity, including an appeal to this court, Skeens v. Paterno, No. 94, September Term, 1983 (May 23, 1983, unreported) the adoption issue disappeared from the case. By order dated September 2, 1983, modified by an order of December 8, 1983, Judge Ahalt: 1. Awarded custody of the child to Debra, subject to liberal visitation rights in favor of Jeffrey, those rights to be exercised through his parents, Peter and Zola Paterno during Jeffrey’s absence on Navy duty; 2.

Ordered Jeffrey to pay Debra $200 per month for the child’s support; 3. Ordered Edward and Dorothy Skeens to pay all the costs of the proceedings, including the fees of a medical expert, the fees of the court-appointed guardian for Debra, and the fees of the court-appointed attorney for the child: 4. Denied the Skeens’s motion for reimbursement of certain medical expenses incurred in connection with the child’s birth; and ⁵⁴ 5. Amended the child’s birth certificate to include Jeffrey’s name as his father.

The Skeenses appealed. Although they argue at length the constitutionality of Maryland’s adoption law (Code, Art. 16, §§ 67 et seq., including the provisions added by Ch. 514, Acts of 1982), that question is moot since, as we have observed, adoption is no longer an issue in the case. The principal remaining issue raised by the appellants has to do with the award of visitation rights. As to this, they assert that Jeffrey could not seek custody of the child absent a decree of filiation.

They question the authority of the chancellor to award visitation rights to the paternal grandparents of an illegitimate child. And they argue that the liberal visitation rights established by the chancellor are unauthorized by law and not in the best interests of the child. In addition, they assert that Jeffrey should not have been permitted to pursue khis custody action until he had paid the costs of the first appeal; that the trial court lacked jurisdiction to proceed while that appeal was pending before the Court of Appeals; that Jeffrey should have been required to pay the hospital and medical expenses associated with the baby’s birth; and that they (the elder Skeenses) should not have been ordered to pay the court costs below. Jeffrey cross-appealed, raising but a single issue: whether the chancellor’s order should have been “interim in nature so that [Jeffrey] is not prejudiced in his desire to obtain custody.” 1 We now proceed to consideration of these contentions. ⁵⁵ I. THE APPEAL A. Visitation Rights In his December 8, 1983, order Judge Ahalt said: [T]he Court is persuaded by a preponderance of the evidence that it will be in [the child’s] best interest to be in the custody of [its] mother.

The Court is further persuaded by a preponderance of the evidence that it will be in [the child’s] best interest to have reasonable and extended visitation with [its] father including but not limited to at least two consecutive days and nights per week, alternating major holidays of New Years, Easter, Memorial Day, Thanksgiving and Christmas and six consecutive weeks during the summer months of June, July and August of each year. The two consecutive days and nights will be each and every Thursday from 6:00 p.m. until Saturday at 6:00 p.m. The Court is further persuaded by a preponderance of the evidence that it is in the best interest of [the child] for Jeffrey to exercise his visitation while enlisted in the U.S. Navy through his parents, Peter and Zola Paterno, at their residence and that they may physically take custody of [the child] during such visitations. 1. Decree of Filiation Despite the facts that Jeffrey has asserted that he is the child’s father, that Debra has admitted it, and that no one has denied it, the Skeenses assert that Jeffrey may not seek custody of the child, or visitation with it, absent a filiation decree: a judicial determination of paternity.

They made a similar argument in the first appeal in this case when they contended that Jeffrey could not withhold his consent for ⁵⁶ the child’s adoption unless he had first been judicially determined to be the father. We rejected that argument. Skeens v. Paterno, supra, slip op. at 11. We reject the like contention made here.

Section 3-602(a) of the Courts and Judicial Proceedings Article grants a court of equity “jurisdiction over the custody, guardianship, legitimation, maintenance, visitation and support of a child.” In Marshall v. Stefanides, 17 Md.App. 364 , 302 A.2d 682 (1973) we construed that statute’s predecessor, Article 16, § 66(a). 2 The case involved a father’s attempt to obtain custody of his illegitimate children. There was no decree of filiation or legitimation. Nevertheless, Judge (now Chief Judge) Gilbert opined “that the law of Maryland is that the father of illegitimate children may not be denied the right to seek custody of those children.” 17 Md.App. at 376 , 302 A.2d 682 . We see no reason to depart from that holding.

And if a father may seek custody of an illegitimate child sans a filiation decree, he surely may obtain visitation rights without one. That is all Jeffrey won in this case. Moreover, even if legitimation were required as a prerequisite to Jeffrey’s request, we think it was accomplished here. Section l-208(b) of the Estates and Trusts Article provides that an illegitimate child shall be considered to be the child of his father only if the father (1) Has been judicially determined to be the father in an action brought under the statutes relating to paternity proceedings; or ⁵⁷ (2) Has acknowledged himself in writing to be the father; or (3) Has openly and notoriously recognized the child to be his child; or (4) Has subsequently married the mother and has acknowledged himself, orally or in writing, to be the father.

In Thomas v. Solis, 263 Md. 536, 542 , 283 A.2d 777 (1971) the Court of Appeals observed that while in this statute (then Art. 93 § 1-208) the legitimation provision [although contained in an inheritance statute] is not limited in its scope and application to matters of inheritance ... such a procedure should certainly be of sufficient legal validity to establish other rights, ofttimes inferior to that of inheritance, arising from the relationship existing between parent and legitimate issue. The legislature, too, has recognized § 1-208 as a legitimation statute, for § 3-602(a) of the Courts Article, in explaining how a court may exercise the jurisdiction bestowed by the latter section, lists as one function the determination “of the legitimacy of a child pursuant to § 1-208 of the Estates and Trusts Article.” See State v. Rawlings, 38 Md.App. 479 , 381 A.2d 708 (1978). The Skeenses, it seems, would have us read § 1-208(b) as permitting legitimation only by way of judicial decree. It is true that in Thomas the Court of Appeals remanded the case for a judicial declaration as to the legitimacy of the children there involved.

But that was the precise relief Thomas was seeking. The statute is clearly not limited to the procedure described in paragraph (1); it is written in the disjunctive, and any one of the four methods specified may be the basis for legitimation. A judicial decree is not the only route to that goal. Williams v. Williams, 18 Md.App. 353, 359 , 306 A.2d 564 (1973), overruled on other grounds, 49 Md.App. 349 , 431 A.2d 749 (1981).

See also Davis v. Schweiker, 553 F.Supp. 158 ⁵⁸ (D.Md.1982) and Massey v. Weinberger, 397 F.Supp. 817, 821 (D.Md.1975). In the case at bar, Jeffrey “acknowledged himself in writing” to be the child’s father. He did so in the very first pleading he filed in this case. That was sufficient to satisfy the requirements of paragraph (2) of § l-208(b).

There was no need for him to obtain a filiation decree in order to seek custody of the child or visitation with it. 2. Grandparental Visitation The Skeenses also aver that the visitation rights afforded Jeffrey’s parents, Peter and Zola Paterno, are not permissible under Maryland law. This contention is not based on any claim as to lack of fitness on the part of the elder Paternos, nor could it be, in light of the record before us. Rather, it is grounded on the flat assertion that “the court had no jurisdiction or authority to award visitation rights to the paternal grandparents.” This is the case, say the Skeenses, because § 3-602(a)(4) of the Courts Article so requires.

As we have previously noted, § 3-602(a) gives equity courts broad authority to determine, among other things, the custody of children. Paragraph (4) of that subsection deals specifically with visitation rights as a type or subclass of custody. It allows a court to [determine who shall have visitation rights to a child. At any time following the termination of a marriage the court may consider a petition for reasonable visitation by one or more of the grandparents of a natural or adopted child of the parties whose marriage has been terminated, and may grant such visitation if the court believes it to be in the best interests of the child____ [Emphasis supplied.] The emphasized language was added to the paragraph by Ch. 276, Laws of 1981.

According to the Skeenses, that language limits court-authorized grandparental visitation to a situation in which a marriage has terminated. In ⁵⁹ the case before us, there never was a marriage. Therefore, they insist, the court could not permit grandparental visitation. The statute is susceptible to that interpretation.

It might also, however, be read as intending only to make it clear that a court may allow grandparental visitation after termination of a marriage, rather than as a limitation on such visitation in other circumstances. Because the statute is ambiguous, we may resort to various aids to construction as we attempt to ascertain legislative intent. Fairchild Industries v. Maritime Air Service, Ltd., 274 Md. 181, 185-86 , 333 A.2d 313 (1975). Chapter 276 was introduced as Senate Bill 333 of the 1981 legislative session.

Its short title proclaimed it as legislation concerning “Visitation Rights — Grandparents” while its purpose clause explained it was designed for “clarifying that a court may grant visitation rights to grandparents of a child.” The body of the bill proposed to amend § 3-602(a)(4) so that it would read: “(4) Determine who shall have visitation rights to a child, INCLUDING ANY OF THE GRANDPARENTS OF THE CHILD IF THEY SO REQUEST.” 3 After minor amendments in the Senate, the bill went to the House of Delegates. There the purpose clause was amended to provide that the bill was for “clarifying when a court may grant visitation rights to grandparents of a child.” The new language proposed by the Senate Bill was deleted and the language emphasized on page 7, supra, was inserted. In that form, the bill passed the House. The Senate concurred in the House amendments.

This history could be read to support the Skeens’s interpretation of the law. What started out as a rather broad bill pertaining to grandparents’ visitation ended as an act dealing with grandparents’ visitation only in the context of ⁶⁰ marital termination. But review of other legislative materials belies this restrictive reading. In 1981, it seemed clear enough that as a matter of law grandparents could be granted custody of and visitation rights to their grandchildren.

See, e.g., Maddox v. Maddox, 174 Md. 470 , 199 A. 507 (1938) and Powers v. Hadden, 30 Md.App. 577 , 353 A.2d 641 (1976). Nevertheless, the files of both the Senate Judicial Proceedings and the House Judiciary Committees show that there was substantial concern on this subject. For example, a letter from the Montgomery County Government to the chairman of the former committee stressed the need for clarification of grandpa-rental rights. And the need for such clarification was often expressed, in other material in the committees’ files, in the context of a divorce situation; that is, the termination of a marriage.

What appears to be a committee staff summary of the bill advises: This bill simply clarifies that a court may, in exercising its jurisdiction over a child’s custody and support, allocate visitation rights to ... grandparents. This is implicit in the current law, and it was felt that it ought to be emphasized by being expressly stated [emphasis in original]. The intent to clarify existing law, rather than to change it, is also expressed in the bill’s purpose clause, as we have seen. One way of ascertaining legislative intent is to identify the problem the legislature was seeking to resolve in enacting a particular law.

See Board of Examiners of Optometry v. Spitz, 300 Md. 466 , 479 A.2d 363 (1984) 479 A.2d at 367 . The legislative history here suggests that the problem to be addressed by Senate Bill 333 was uncertainty as to whether grandparents could request visitation with their grandchildren after the termination of a marriage. The legislative history contains no indication that the bill was intended as a limitation on grandparental visitation — or on any one else’s visitation — in other contexts, such as a ⁶¹ case involving an illegitimate child. Nor is any argument made as to why the legislature might wish to impose such a limitation.

We hold, therefore, that § 3-602(a)(4) does no more than restate existing law as to grandparental visitation rights in a termination of marriage context. It does not limit the power of a court as to custody and visitation by grandparents under other circumstances. This construction also harmonizes the provisions of paragraph (4) with the broad authority granted to the courts in the introductory sentence of subsection (a). Smith v. Higinbothom, 187 Md. 115, 131-32 , 48 A.2d 754 (1946).

Additionally, it avoids an anomalous result and one with possible equal protection implications. Under the Skeens’s reading of paragraph (4), only parents, and in the event of the termination of a marriage, grandparents, would be able to seek visitation rights. Pan Am Sulphur v. State Dept., 251 Md. 620, 627 , 248 A.2d 354 (1968); Berlin v. Aluisi, 57 Md.App. 390, 397 , 470 A.2d 388 (1984). We do not believe the legislature intended any such sweeping limitations.

Under any circumstances, the ultimate test for custody and visitation is the best interests of the child. See, e.g., Elza v. Elza, 300 Md. 51 , 475 A.2d 1180 (1984); Boothe v. Boothe, 56 Md.App. 1 , 466 A.2d 58 (1983) and Annot., “Grandparents’ Visitation Rights,” 90 A.L.R.3d 222 (1979). It may well be, as we said in Boothe, 56 Md.App. at 4-5 , 466 A.2d 58 , that custody should be granted to a grandparent (as against a parent) only under exceptional circumstances. That may also be true as to grandparental visitation.

See Chodzko v. Chodzko, 66 Ill.2d 28 , 4 Ill.Dec. 313 , 360 N.E.2d 60 (1976) and In the Matter of Adoption of a Child, 140 NJ.Super. 91, 355 A.2d 211 (1976). But here Jeffrey’s absence on naval duty constituted such a circumstance. While he was away, an important way for him to maintain contact with the child — and for the child to maintain contact with the paternal side of his family — was through Jeffrey’s parents. Solomon v. Solomon, 319 Ill. ⁶² App. 618, 49 N.E.2d 807 (1943); compare Powers v. Hadden, supra.

We hold that under the circumstances of this case the court had power to award visitation rights to the child’s paternal grandparents and that it did not abuse its discre: tion in doing so. 3. The Visitation Award There remains for