Burak v. Burak – Grandparent Custody – Court of Appeals’s Oral Argument

On June 2, 2017, Maryland’s Court of Appeals (“CoA”) heard oral argument in Burak v. Burak. Video link: http://www.courts.state.md.us/…/2016/coa20170602caseno97.mp4

The CoA is considering three questions:

1) May grandparents intervene in a custody dispute between parents to seek custody of their grandchild before there has been an adjudication of the unfitness of the custodial parents?

2) May the “exceptional circumstances” test set forth by this Court in Ross v. Hoffman, 280 Md. 172 (1977) be used to take custody away from a biological parent with whom the child has lived for his entire life?

3) May a parent be required to pay child support to grandparents, and if so, may such child support be awarded without consideration of the financial resources of the grandparents?

This is an appeal of Burak v. Burak, 231 Md.App. 242 (December 7, 2014) – a case with many moving pieces. The parents’ polyamorous relationship; mother’s claimed multiple personality disorder; drug use; domestic violence; the child’s behavior issues; a $131,000 gifted down payment; and…4 dogs and 20 guinnea pigs.

To read the Court of Special Appeals’s (“CSA”) opinion:http://www.mdcourts.gov/opinions/cosa/2016/2744s14.pdf.

At the trial court level, the grandparents intervened and presented three issues: 1) custody of the child; 2) child support; and, 3) reclaiming the $131,000 down payment. The grandparents were awarded custody, child support, and the first $131,000 from the sale of the home. Mother filed an appeal against her ex-in-laws.

To the CSA, Mother presented 5 errors by the trial court: 1) award of grandparent custody violated her constitutional rights; 2) the trial court’s soliciting of expert witness testimony in an “unorthodox manner”; 3) allowing the grandparents to intervene in the divorce property distribution hearing; 4) awarding husband contribution toward maintenance on the family home; and, 5) requiring mother to pay the grandparents child support.

In short, the CSA agreed with the trial court on the appropriateness of the grandparents’ intervention in the custody case, finding of parental unfitness and exceptional circumstances justifying an award of custody to non-parents, and award of custody to the grandparents.

The CSA lacked a transcript so declined to address mother’s claims regarding the expert witness testimony. The CSA agreed with mother that the grandparents should not have been allowed to intervene to assert a claim in the divorce property division portion of the case, stating that the “purpose of divorce proceedings is to sever the marital relationship and distribute the rights and responsibilities that grew out of it…not to facilitate the collection of marital debts by third parties.” The CSA found no error in the trial court’s decision to require mother to reimburse father for his payment of the mortgage to save the house from foreclosure during the parents’ separation. Lastly, the CSA found no error with the child support award, stating “[t]he support obligations lie with the parents, not the Grandparents, and nothing about the Grandparents’ means relieves (or should relieve) Wife or her obligations to the Child.”

As one can see in the video replay, the CoA’s questioning during oral argument focused on issues such as constitutionality of custody awards to a non-parent, the impact of extramarital relationships and drug use on custody determinations, whether third party custody cases requires bifurcated hearings first fitness and exceptional circumstances followed by the child’s best interests, whether an award of custody to the paternal grandparents amounted to de facto custody to the father, and whether parental truthfulness reflects on fitness.

It will be interesting to see if the CoA’s written opinion paves an easier path for grandparents seeking custody.

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