Family Law Development – Burak v. Burak

On August 29, the Court of Appeals issued a new family law opinion, Burak v. Burak – a third party custody case involving grandparents.
The headnotes indicate that Burak v. Burak creates new law and standards in the realm of third party custody cases, especially as it relates to grandparents:
Headnote 1:
“The Court of Appeals held that there is no procedural bar prohibiting a third-party from
seeking to intervene in a custody dispute between parents because Maryland Rule 2-214
allows any person to intervene in an action “when the person’s claim or defense has a
question of law or fact in common with the action.” Maryland Rule 2-214(b)(1). The
Court also held that because a third-party may only obtain custody of a child over the
child’s biological parents if the third-party can demonstrate that the parents are either unfit or that exceptional circumstances detrimental to the child exist, the third-party seeking to intervene in an existing custody action must make a prima facie showing in his or her pleading that the parents are either unfit or that exceptional circumstances exist. See McDermott v. Dougherty, 385 Md. 320, 325, 869 A.2d 751, 754 (2005). The Court
concluded that the Grandparents’ Motion for Permissive Intervention contained sufficient factual allegations to make a prima facie showing that the parents may be unfit or that exceptional circumstances existed.”
Headnote 2:
“The Court of Appeals held that in determining whether a parent is unfit – sufficient to
overcome the presumption favoring parental custody in a third-party custody dispute – the court may consider whether:
(1) the parent has neglected the child by manifesting such indifference to the child’s welfare that it reflects a lack of intent or an inability to discharge his or her parental duties;
(2) the parent has abandoned the child;
(3) there is evidence that the parent inflicted or allowed another person to inflict physical or mental injury on the child, including, but not limited to physical, sexual, or emotional abuse;
(4) the parent suffers from an emotional or mental illness that has a detrimental impact on the parent’s ability to care and provide for the child;
(5) the parent otherwise demonstrates a renunciation of his or her duties to care and provide for the child; and
(6) the parent has engaged in behavior or conduct that is detrimental to the child’s welfare.
The Court concluded that although several of the hearing judge’s findings that served as the basis for his conclusion that the mother was unfit implicated several of the factors above, because the majority of the hearing judge’s findings were not supported by the record and were, therefore, erroneous, the hearing judge abused his discretion in finding that Petitioner was an unfit parent.”
Headnote 3:
“The Court of Appeals held that the hearing judge erred in applying the seven factors
contained in Ross v. Hoffman, 280 Md. 172, 191, 372 A.2d 582, 593 (1977), to the facts in
the case at bar and, therefore, abused his discretion in concluding that exceptional
circumstances existed in this case. The hearing judge erred in finding that the “length of
time” the child at issue “had been away from” Petitioner was “whenever they were going
to do some tripping[]” because the first Hoffman factor only applies to circumstances where a biological parent has given constructive custody of the child to a third-party over a long period of time, and ample evidence was presented reflecting that Petitioner has been an active custodian of the child since he was born. The hearing judge also erred in concluding that the Grandparents had assumed care of the child “from the time of [his] birth[]” because he ignored the facts presented at the hearing reflecting that Petitioner has been continuously and actively involved in the child’s care since birth. The hearing judge also erred in drawing the conclusion that if the child remained in Petitioner’s custody, he would likely fail or continue to be in crisis because ample testimony presented indicated that Petitioner was responsive to the child’s behavioral difficulties and was actively working with both the child’s school and her own therapist to identify ways to help the child address his behavioral issues. The hearing judge also erred in failing to make substantive factual findings in regard to the third Hoffman factor, which considers the “possible emotional effect on the child of a change of custody,” and the fourth Hoffman factor, which considers the “period of time which elapsed before the parent sought to reclaim the child.” Hoffman, 280 Md. at 191, 372 A.2d at 593. The Court concluded that the hearing judge did not err in finding that the child’s relationship with his Grandparents was “extremely strong” and the Court deferred to the hearing judge’s determination that there was no “intensity or genuineness” on Petitioner’s part in having custody of the child. See id. See McDermott, 385 Md. at 325, 869 A.2d at 754.”
A must read for family law attorneys.

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