Boswell v. Boswell, 4

CourtCourt of Appeals of Maryland
Writing for the CourtCHASANOW.
Citation721 A.2d 662,352 Md. 204
PartiesKimberly BOSWELL v. Robert G. BOSWELL.
Docket NumberNo. 4,4
Decision Date18 December 1998

721 A.2d 662
352 Md. 204

Kimberly BOSWELL
v.
Robert G. BOSWELL

No. 4, Sept. Term, 1998.

Court of Appeals of Maryland.

December 18, 1998.


721 A.2d 664
Cynthia E. Young, Annapolis, for petitioner

Nancy Polikoff, American University Law School, Washington, DC; Beatrice Dohrn, Lambada Legal Defense and Education Fund, Inc., New York City, all on brief, for respondent.

James L. McHugh, General Counsel, Nathalie F.P. Gilfoyle, American Psychological Ass'n, Carolyn Polowy, General Counsel, Nat. Ass'n of Social Workers, Paul M. Smith, Nory Miller, Elena N. Broder, Jenner & Block, all of Washington, DC, amici curiae for American Psychological Ass'n and Nat. Ass'n of Social Workers.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER, WILNER and CATHELL, JJ.

721 A.2d 663
CHASANOW, Judge

In the instant case, Kimberly Boswell (Petitioner) asks us to clarify the standard a court should apply in determining the extent of restrictions on parental visitation of children in the presence of non-marital partners. Petitioner claims that the "best interests of the child" standard should apply and that the Court of Special Appeals erred in applying an "actual harm" standard. Robert Boswell (Respondent) contends that the Court of Special Appeals did apply the best interests of the child standard, correctly coupling this standard with the need for a factual finding of actual harm in order for parental visitation to be restricted. For the reasons set forth below, we affirm the judgment of the Court of Special Appeals and hold that the correct standard to be applied is the best interests of the child, with visitation being restricted only upon a showing of actual or potential harm to the child resulting from contact with the non-marital partner.

I.

This appeal arises from an order of the Circuit Court for Anne Arundel County, restricting Respondent's visitation with his children. Respondent appealed to the Court of Special Appeals, which vacated the judgment of the circuit court, including all of the visitation restrictions. See Boswell v. Boswell, 118 Md.App. 1, 701 A.2d 1153 (1997). Petitioner filed a motion for reconsideration and for a stay, which the Court of Special Appeals denied. Petitioner then petitioned for certiorari to this Court, challenging only that portion of the Court of Special Appeals' order vacating the prohibition on visitation in the presence of Respondent's non-marital partner. We granted certiorari and affirm the judgment of the Court of Special Appeals.

II.

This Court concurs with the procedural history and facts of this case as presented in the opinion of the Court of Special Appeals. Boswell, 118 Md.App. at 5-8, 11-22, 701 A.2d at 1154-56, 1158-63. For the purposes of this appeal, we will summarize only the pertinent facts and circumstances.

Robert Boswell and Kimberly Boswell were married in May 1986. Two children were born of the union, son Ryan born in 1988 and daughter Amanda born in 1991. In August 1994, the parties separated after Mr. Boswell told his wife that he was homosexual. In February 1995, Mr. Boswell began living with Robert Donathan, with whom he began an intimate relationship after he and Ms. Boswell separated.

Ms. Boswell filed the initial complaint for limited divorce on October 5, 1994. On January 20, 1995, Judge James Cawood of the Circuit Court for Anne Arundel County ordered visitation between Mr. Boswell and his children each Wednesday evening and every other weekend. On February 2, 1995, the

721 A.2d 665
Boswells were ordered to meet with the Department of Social Services, which was to report to the court regarding custody and visitation. Mr. Boswell filed a counterclaim for absolute divorce in July 1995 and Ms. Boswell filed an amended complaint in August 1995

Even though the parties filed a pretrial order on December 12, 1995, stating that the only contested issues were alimony and counsel fees and projecting a one-day trial, no final agreement was entered before trial. Thus, the trial over which circuit court Judge Lawrence Rushworth presided lasted five full days (March 12, 13, 14, and April 1, 4, 1996). Most of the testimony concerned disputes over the value, possession, and disposition of various personal property items. Both parties agreed that primary custody was to remain with Ms. Boswell. As to visitation, on April 1, 1996, Mr. Boswell moved for recusal of Judge Rushworth based on statements he made during the conference that indicated a predisposition to limit the father's visitation, specifically permitting no contact between Amanda and Ryan and Mr. Donathan. Mr. Boswell claimed these statements demonstrated undue prejudice toward his case. The court denied the motion.

On April 5, 1996, the parties reached agreement on the financial issues and the judge ruled from the bench on visitation. In its oral opinion, the court awarded sole custody to Ms. Boswell and severely curtailed Mr. Boswell's visitation. In its written order filed on April 26, 1996, the court limited Mr. Boswell to visiting with his children every other Saturday from 8:00 a.m. to 8:00 p.m., every other Sunday from 11:00 a.m. to 8:00 p.m. and every Wednesday from 3:00 p.m. to 8:00 p.m. on school days and from 8:00 a.m. to 8:00 p.m. on non-school days. The order further prohibited any overnight visitation and visitation with the children in the presence of Mr. Donathan or "anyone having homosexual tendencies or such persuasions, male or female, or with anyone that the father may be living with in a non-marital relationship."

The trial court placed these limitations on Mr. Boswell's visitation even though they were not requested by Ms. Boswell. Indeed, when Ms. Boswell testified and was asked her opinion about the children's visitation with their father, she replied "I think that they should visit him. * * * [E]very other weekend and in the mid-week is fine." She also agreed with the recommendation of Marcia Kabriel, the court-appointed social worker, that Mr. Boswell should have visitation with the children one week per month during the summers. Furthermore, Ms. Boswell never testified that she wanted Mr. Boswell to exclude Mr. Donathan from visitation, nor did she allege that Mr. Donathan's presence during visitation was harmful to the children. Visitation only became a disputed issue when Ms. Kabriel recommended an increase in Mr. Boswell's visitation, which he then asked the court to grant, and Ms. Boswell disagreed with some of the social worker's suggestions. Specifically, Ms. Boswell did not want any overnight visits during the week nor did she want summer visits scheduled for consecutive weeks and no visitation in August due to her own vacation plans.

The trial judge primarily based his visitation order on videotaped in camera interviews with Ryan and Amanda, which yielded no definitive response from either child as to how they felt about visitation in the presence of Mr. Donathan.1 The court made the following comments from the bench concerning Mr. Boswell's visitation with his children:

"[W]here there is a ... paramour involved.... I have often, time and time again, restricted visitation. I think that's only appropriate. * * * [I will hold] down the ... visitations of both the weekend and Wednesday and [restrict] during this period
721 A.2d 666
any overnight visitation. Clearly the Court is convinced that ... there is a relationship, at least up until this time, and no concern to change before this time, that [Mr. Boswell] is sleeping with ... another person without the cloak of a marital relationship.

* * *

[T]here will be no visitation in the home where there is ... Donathan. Or any other situation that goes to a relationship that isn't condoned.

* * *

Mr. Boswell, there may come a time when you would elect to have someone else stay at the home with you, perhaps a female companion or another male companion, but my order is that the children are not to visit you under those circumstances. So if it means taking them to some other place, some neutral place, then that's the Order of this Court, and that's a strict order [until] it is clear to me that we'll have no situation where you have a live-in companion." (Emphasis added).

On August 22, 1996, upon a second request by Mr. Boswell's counsel, Judge Rushworth recused himself from any additional proceedings in this case. Mr. Boswell appealed to the Court of Special Appeals, with his principal argument being that the trial court failed to make any findings of fact upon which to base its visitation order. The Court of Special Appeals entered a judgment in Mr. Boswell's favor on October 29, 1997, vacating the prohibition against overnight visitation. The court determined that the trial judge had erroneously concluded that Dr. Kay Standley objected to all overnight visitation and that neither Ryan nor Amanda wanted to visit overnight, when in actuality it was only Ryan who felt this way. The court remanded this issue to the trial court to determine if it would impose the same restriction. Regarding the prohibition against visitation in the presence of Mr. Donathan, the court vacated it without remand for two reasons:

"The court articulated no reasons for the restriction other than the `inappropriateness' of the relationship, and it failed to state on the record how the children might be harmed by exposure to the relationship. Given the testimony of Kabriel, Standley, Officer Parsons, and Officer Bauman, we hold that there was no evidentiary basis for the court to conclude the relationship was harmful to the children. Hence, the court could not have articulated any harmful effect, since there was no evidence to support such a finding. There was therefore no showing that the restriction was necessary to prevent any adverse impact on the children."

Boswell, 118 Md.App. at 33-34, 701 A.2d at 1169. The court also vacated the remainder of the visitation prohibitions without remand.

Ms. Boswell filed a motion...

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122 practice notes
  • Collins v. Collins, No. 120
    • United States
    • Court of Special Appeals of Maryland
    • May 30, 2002
    ...The failure to make such findings constitutes reversible error. Boswell v. Boswell, 118 Md.App. 1, 35-36, 701 A.2d 1153 (1997), aff'd, 352 Md. 204, 721 A.2d 662 Child support is to be determined in accordance with FL § 12-204, which reads in pertinent part: (a) Schedule to be used; division......
  • Gestl v. Frederick, No. 1231
    • United States
    • Court of Special Appeals of Maryland
    • July 3, 2000
    ...is a difficult one. A natural parent has a fundamental right relating to the care and custody of his or her child. See Boswell v. Boswell, 352 Md. 204, 217, 721 A.2d 662 (1998); see also Troxel, ___ U.S. at ___, 120 S.Ct. at 2060. As indicated by our holdings in Tedesco and Lipiano, a non-b......
  • Malin v. Mininberg, No. 2520
    • United States
    • Court of Special Appeals of Maryland
    • December 1, 2003
    ...692; Payne v. Payne, 132 Md.App. 432, 441, 752 A.2d 1209 (2000); Boswell v. Boswell, 118 Md.App. 1, 34-35, 701 A.2d 1153 (1997), aff'd, 352 Md. 204, 721 A.2d 662 (1998). Pursuant to F.L. § 12-201(c)(3)(xiv), actual income includes "alimony or maintenance received." Moreover, under F.L. § 12......
  • Evans v. Wilson, No. 123
    • United States
    • Court of Appeals of Maryland
    • August 24, 2004
    ...favor of protecting the best interests of the child. See In re Mark M., 365 Md. 687, 705-06, 782 A.2d 332, 343 (2001); Boswell v. Boswell, 352 Md. 204, 218-19, 721 A.2d 662, 669 (1998); In re Adoption No. 10941, 335 Md. 99, 113, 642 A.2d 201, 208 (1994); In re Adoption/Guardianship No. A91-......
  • Request a trial to view additional results
125 cases
  • Collins v. Collins, No. 120
    • United States
    • Court of Special Appeals of Maryland
    • May 30, 2002
    ...The failure to make such findings constitutes reversible error. Boswell v. Boswell, 118 Md.App. 1, 35-36, 701 A.2d 1153 (1997), aff'd, 352 Md. 204, 721 A.2d 662 Child support is to be determined in accordance with FL § 12-204, which reads in pertinent part: (a) Schedule to be used; division......
  • Gestl v. Frederick, No. 1231
    • United States
    • Court of Special Appeals of Maryland
    • July 3, 2000
    ...is a difficult one. A natural parent has a fundamental right relating to the care and custody of his or her child. See Boswell v. Boswell, 352 Md. 204, 217, 721 A.2d 662 (1998); see also Troxel, ___ U.S. at ___, 120 S.Ct. at 2060. As indicated by our holdings in Tedesco and Lipiano, a non-b......
  • Malin v. Mininberg, No. 2520
    • United States
    • Court of Special Appeals of Maryland
    • December 1, 2003
    ...692; Payne v. Payne, 132 Md.App. 432, 441, 752 A.2d 1209 (2000); Boswell v. Boswell, 118 Md.App. 1, 34-35, 701 A.2d 1153 (1997), aff'd, 352 Md. 204, 721 A.2d 662 (1998). Pursuant to F.L. § 12-201(c)(3)(xiv), actual income includes "alimony or maintenance received." Moreover, under F.L. § 12......
  • Evans v. Wilson, No. 123
    • United States
    • Court of Appeals of Maryland
    • August 24, 2004
    ...favor of protecting the best interests of the child. See In re Mark M., 365 Md. 687, 705-06, 782 A.2d 332, 343 (2001); Boswell v. Boswell, 352 Md. 204, 218-19, 721 A.2d 662, 669 (1998); In re Adoption No. 10941, 335 Md. 99, 113, 642 A.2d 201, 208 (1994); In re Adoption/Guardianship No. A91-......
  • Request a trial to view additional results

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