Auclair v. Auclair, No. 5764

CourtCourt of Special Appeals of Maryland
Writing for the CourtDAVIS.
Citation730 A.2d 1260,127 Md. App. 1
PartiesAustin AUCLAIR et al. v. Alison AUCLAIR et al.
Docket NumberNo. 5764
Decision Date15 June 1999

730 A.2d 1260
127 Md.
App. 1

Austin AUCLAIR et al.
v.
Alison AUCLAIR et al

No. 5764, Sept. Term, 1998.

Court of Special Appeals of Maryland.

June 15, 1999.


730 A.2d 1262
Rudolf A. Carrico, Jr., LaPlata, for appellants

Gregory T. Douds (Tate & Bywater, Ltd. on the brief for appellee, Alison Auclair), LaPlata (David A. Dunwiddie, Bryans Road, on the brief for appellee, Nicholas Auclair), for appellees.

Argued before DAVIS, SONNER and ADKINS, JJ.

730 A.2d 1261
DAVIS, Judge

On June 27, 1981, Alison and Nicholas Auclair, appellees, were married. Two children, Austin and Vanessa, were born of the marriage. The family also adopted two children, Jordan and Brenton. On November 17, 1997, Alison filed a complaint for divorce and custody of Austin, Jordan, and Vanessa in the Circuit Court for Charles County.1 Nicholas filed a timely counter-complaint for divorce and joint custody of Austin, Jordan, and Vanessa. Alison subsequently was awarded pendente lite custody of Austin, age 16, Jordan, age 14, and Vanessa, age 12.2 On February 5, 1998, the court appointed Diana Donahue as guardian ad litem for the Auclair children, instructing that she was to represent their interests in, and submit recommendations regarding the parents' custody dispute. On March 25, 1998, Alison filed a motion to remove Donahue as guardian ad litem. The trial court granted Alison's request and, on April 14, 1998, the court appointed Cecilia Keller to replace Donahue.

On November 19, 1998, Rudolf A. Carrico, Jr., was hired to represent Austin and Vanessa, appellants, in the divorce and

730 A.2d 1263
custody proceedings. Carrico filed an entry of appearance on November 23, 1998, explaining that appellants are mature, intelligent children and they had requested that he represent them. On December 15, 1998, the court (Nalley, J.) refused to recognize Carrico's entry of appearance. A motion to intervene was filed and the merits of the motion were argued at a December 22, 1998 hearing. Alison appeared in support of the motion for intervention; Keller and Nicholas appeared in opposition to the motion. Following the trial court's December 28, 1998 denial of appellants' motion to intervene, a timely appeal was noted.3 Appellants present for our review three questions that we have rephrased as follows

I. Did the lower court commit reversible error when it denied appellants' motion to intervene?

II. Did the lower court commit reversible error by denying the minor children the right to have an advocate for their preferences participate in their parents' custody dispute?

III. Did the lower court commit reversible error when it instructed Carrico that he could not speak with the minor children?

For the reasons discussed herein, we affirm in part and vacate in part the judgment of the lower court.

FACTS

On November 2, 1997, Alison filed a complaint for divorce. At a January 21, 1998 hearing, pendente lite custody of Austin, Vanessa, and Jordan was granted to Alison. In addition, on February 8, 1998, the trial court appointed Donahue as the children's guardian ad litem. The order stated that Donahue would represent the interests of the children in all of the matters relating to their parents' divorce and would have the authority to waive or assert the children's privileges, including the psychiatrist-patient privilege. Donahue was further instructed to submit her recommendations of the children's best interests to the court.

Donahue submitted her report on March 5, 1998, after talking with the children, interviewing their therapists, and meeting with counsel for each of the parents. Under a separate and distinct subheading of the report, Donahue addressed the preferences of Austin, Vanessa, and Jordan, stating that each of the children made a virtually identical request to reside with their mother and to visit their father only when they desire. The report further explained:

What is apparent now is that the parents are locked in a struggle for control; and the children are prime weapons. Based on conversations with some of the professionals involved with various family members, the undersigned believes that the children were affected by the separation, to the point of missing their father; but quickly were taught that the expression of such feelings was not acceptable.
The level of emotional investment by the children in the mother's issues and perspective is disconcerting.
...
It seems that they are all being given adult information and are expected to express adult concerns and desires for resolution; and the adult they are expressing is their mother. These children are all very articulate and say very clearly what they want. However, the virtual identity of words and phrases used brings to mind old films of brainwashing techniques used by Communist forces against American soldiers in the 40's and 50's. The only difference is that these children are more animated than the brainwashing victims from the films. They seem to have internalized
730 A.2d 1264
the messages they are expressing. At the same time, the father in this matter is not without responsibility for the children's situation. He seems to fail to take into account the importance of all three children that they be able to retain some control over their own lives during this process.
...
It has been reported that, when the children try to discuss the importance of continuing to participate in activities, the father's response is that they will participate in whatever he says, because he is the father.
...
The extent to which such reports are accurate is not something the undersigned can determine; but it is clear that the children, whether rightly or wrongly, do not see his actions in recent months as being motivated primarily by concern for them.

In her conclusion and recommendation, Donahue advised that the children should maintain "some sort of regular contact with their father." Donahue recognized, however, that the children do not want a visitation schedule and would rather visit their father when they want. Thus, Donahue stated that she felt "bound to make such a recommendation to the [c]ourt."

On March 25, 1998, Alison filed a motion to remove Donahue as the children's guardian ad litem. She urged that the children have "extreme reservations" about Donahue's representation of them and "have continued to voice their protest and reluctance to meet and/or discuss any issues relating to this matter" with Donahue. Alison requested that the trial court remove Donahue from the case and permit Austin and Vanessa to be "unaided by any outside counsel or influence from the [c]ourt."

In response, Donahue agreed that Austin and Vanessa apparently did not want to meet with her and had refused to meet with her on many occasions. Donahue suggested, therefore, that she be removed from her appointment. She also recommended that the court continue to monitor the children and appoint new counsel for them. Nicholas also did not oppose the motion and expressly agreed with Donahue's suggestion that new counsel should be appointed for the children. In an order filed on April 14, 1998, the trial court removed Donahue and appointed Cecilia Keller to replace Donahue as the children's guardian ad litem.

Keller has also encountered great difficulty as the children's guardian ad litem. Despite several requests, she has been denied the opportunity to meet with the children in their home. For reasons not articulated to this Court, or the court below, Austin and Vanessa do not want to speak with Keller and she is not welcome in Alison's home. Per the court's request, Keller submitted an initial report to the court, relaying appellants' desires to visit with their father only when they wish as well as her independent suggestion of the children's best interest.4 The trial court has also received numerous letters from Austin and Vanessa, in which they vehemently express their preference to live with their mother and visit their father at their own discretion and emphatically relay their concerns about their mother's expenses.

On July 30, 1998, Keller filed a motion for mental evaluation of the parties and the children, explaining that the evaluations would be of great assistance to a determination of the children's best interest, given the reports of Alison, Austin, and Vanessa that Nicholas was "stalking and harassing" them, Alison's refusal to

730 A.2d 1265
comply with court-ordered visitation, and Jordan's letter to Keller stating that he was "in a `lock-down' in his home while he was in [Alison's] custody." In an August 7, 1998 order, the court instructed that each party and the children in his or her pendente lite custody submit to mental evaluations. Although Nicholas complied with the order by allowing himself and Jordan to receive a mental evaluation, Alison has failed to comply. Alison also continued to violate the court's visitation order. Consequently, on August 11, 1998, Nicholas filed a petition for contempt for Alison's failure to provide the ordered visitation. In addition, on October 29, 1998, Keller filed a second motion in support of the mental evaluations.

On November 23, 1998, Carrico purported to enter an appearance on appellants' behalf. The trial court refused to recognize the appearance and, on December 17, 1998, Carrico filed a motion to intervene, urging that Austin and Vanessa requested his representation in their parents' lawsuit. A hearing was held on December 22, 1998, addressing the motion to intervene as well as Alison's failure to comply with the orders for visitation and mental evaluations. The court concluded that appellants were not entitled to intervene as a party and that Alison had failed to comply with both the visitation order and the mental evaluation order. This appeal was timely noted from the court's January 28, 1999 order denying the motion to intervene.

DISCUSSION

I

Appellants contend that the trial judge committed reversible error by denying...

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7 practice notes
  • In re Tamara R., No. 275
    • United States
    • Court of Special Appeals of Maryland
    • December 29, 2000
    ...that does not involve a CINA, the children are not required to be parties when custody or visitation is decided. See Auclair v. Auclair, 127 Md.App. 1, 13, 730 A.2d 1260 (1999). The court must focus on the best interests of the children. Unless a guardian ad litem is appointed, the children......
  • Marran v. Marran, No. 03-3018.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • July 15, 2004
    ...to make children parties to the custody litigation, either through Page 152 intervention or other means. See, e.g., Auclair v. Auclair, 127 Md.App. 1, 730 A.2d 1260, 1270 (1999); Miller v. Miller, 677 A.2d 64, 66-67 (Me.1996); Hartley v. Hartley, 886 P.2d 665, 673-74 (Colo.1994); Leigh v. A......
  • Fox v. Wills, No. 43, September Term, 2003.
    • United States
    • Court of Special Appeals of Maryland
    • January 18, 2006
    ...§ 1-202 counsel with a "guardian ad litem" as such "guardian" is viewed in various out-of-state authorities. See also Auclair v. Auclair, 127 Md.App. 1, 17, 730 A.2d 1260, 1268 (1999) ("In custody matters, the guardian ad litem has traditionally been viewed as functioning as an agent or arm......
  • Fox v. Wills, No. 01075
    • United States
    • Court of Special Appeals of Maryland
    • May 6, 2003
    ...and attorney as investigator—a fitting description of what the typical guardian ad litem is intended to do. In Auclair v. Auclair, 127 Md.App. 1, 730 A.2d 1260 (1999), this Court was asked to decide whether children whose parents were involved in a custody dispute were entitled to intervene......
  • Request a trial to view additional results
7 cases
  • In re Tamara R., No. 275
    • United States
    • Court of Special Appeals of Maryland
    • December 29, 2000
    ...that does not involve a CINA, the children are not required to be parties when custody or visitation is decided. See Auclair v. Auclair, 127 Md.App. 1, 13, 730 A.2d 1260 (1999). The court must focus on the best interests of the children. Unless a guardian ad litem is appointed, the children......
  • Marran v. Marran, No. 03-3018.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • July 15, 2004
    ...to make children parties to the custody litigation, either through Page 152 intervention or other means. See, e.g., Auclair v. Auclair, 127 Md.App. 1, 730 A.2d 1260, 1270 (1999); Miller v. Miller, 677 A.2d 64, 66-67 (Me.1996); Hartley v. Hartley, 886 P.2d 665, 673-74 (Colo.1994); Leigh v. A......
  • Fox v. Wills, No. 43, September Term, 2003.
    • United States
    • Court of Special Appeals of Maryland
    • January 18, 2006
    ...§ 1-202 counsel with a "guardian ad litem" as such "guardian" is viewed in various out-of-state authorities. See also Auclair v. Auclair, 127 Md.App. 1, 17, 730 A.2d 1260, 1268 (1999) ("In custody matters, the guardian ad litem has traditionally been viewed as functioning as an agent or arm......
  • Fox v. Wills, No. 01075
    • United States
    • Court of Special Appeals of Maryland
    • May 6, 2003
    ...and attorney as investigator—a fitting description of what the typical guardian ad litem is intended to do. In Auclair v. Auclair, 127 Md.App. 1, 730 A.2d 1260 (1999), this Court was asked to decide whether children whose parents were involved in a custody dispute were entitled to intervene......
  • Request a trial to view additional results

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