Burak v. Burak, No. 97

CourtCourt of Special Appeals of Maryland
Writing for the CourtOpinion by Hotten, J.
Decision Date29 August 2017
Docket NumberNo. 97

MARK BURAK, et al.

No. 97


Argued: June 2, 2017
September Term, 2016
August 29, 2017

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.

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.


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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.

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Circuit Court for Montgomery County
Case No. 112675-FL

Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.

Opinion by Hotten, J.
Watts, J., joins in judgment only.

McDonald and Getty, JJ., dissent.

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We consider whether the Circuit Court for Montgomery County properly determined that the grandparents of a minor child may intervene in a custody action between the child's parents and whether the circuit court abused its discretion in concluding that the mother was unfit and that "exceptional circumstances" existed in the present case that were sufficient to overcome the constitutional presumption favoring parental custody and authorized the circuit court to grant custody of the child to the grandparents pursuant to the "best interests of the child" standard. We also consider whether the circuit court properly excluded consideration of the grandparents' financial resources in determining child support and whether the amount of child support the circuit court required the mother to contribute to the care of the child was correct.

Natasha Burak ("Petitioner") and Mark Burak ("Father") were married in October 2006, and had a child ("the Child") two years later. From early 2009 until December 2012, Petitioner, Father, and another woman - "M" - engaged in a polyamorous relationship and illicit drug use. The parties scheduled their activities on a calendar kept by Petitioner and, prior to engaging in any illicit activity, the parties would take the Child to his paternal grandparents' house. In 2011, Petitioner and Father purchased a marital home in Silver Spring, Maryland with funds provided by Father's parents - Gary and Martha Burak ("the Grandparents") - and sometime in 2012, M moved into the basement of the marital home.

Beginning in September 2012 and continuing until February 2013, the triad attended couples counseling because Petitioner no longer wanted to engage in sexual relations with M and she wanted M to leave the marital home. In December 2012, the sexual relationship between Petitioner and M ended, but the two continued to have a non-sexual relationship

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that included cooking together and sleeping in the same bed. On May 31, 2013, in response to two violent incidents that occurred earlier in May 2013, Petitioner filed for and received a Temporary Restraining Order ("TRO") against Father. Father subsequently moved out of the marital home and Petitioner filed a complaint for absolute divorce on July 11, 2013.

On January 14, 2014, a pendente lite consent agreement reached by the parties was placed on the record. Pursuant to the agreement, Petitioner was granted custody of the Child, but Father retained visitation rights that were supervised by the Grandparents. Petitioner and Father were also required to undergo random drug testing and attend therapy. Father passed all his subsequent drug tests, but Petitioner tested positive for marijuana in one of the tests. On February 20, 2014, the custody evaluator issued her report, recommending that Petitioner have custody of the Child with Father continuing to have a right to visitation, both parties receive a mental health evaluation and a psychiatric consultation, and both parties continue to be subject to random drug testing.

On April 24, 2014, the Grandparents filed a motion to intervene in the custody action between Petitioner and Father, seeking custody of the Child in light of Petitioner and Father's illicit drug use and given the strong role that the Grandparents had played in the Child's life since birth. Petitioner opposed the Grandparents' intervention, but the circuit court granted the Grandparents' motion on July 25, 2014. Also in July 2014, Petitioner's biological daughter's adoptive family ("the Ks")1 moved into the marital home with Petitioner and the Child.

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Beginning in May 2014, at the end of the Child's kindergarten year, the Child began exhibiting negative and disruptive behavior in class. The bad behavior continued through the summer and into the start of the Child's first grade year, when the Child began to leave class without permission and exhibit bouts of anger. On September 4, 2014, the Child kicked the assistant school principal and threatened to blow up the school. The school contacted Petitioner and provided a referral to the Montgomery County Crisis Center ("Crisis Center").2 The Child was subsequently allowed to return to school after the referral was completed.

Between September 15 and September 19, 2014, the circuit court held a custody hearing. Thereafter, the circuit court issued an oral ruling, finding that both Petitioner and Father were unfit parents and that exceptional circumstances existed in the case. The circuit court granted physical and legal custody of the Child to the Grandparents at the conclusion of the hearing but held that both Petitioner and Father retained the right to visitation. The circuit court entered an interim order on September 30, 2014 that granted physical and legal custody of the Child to the Grandparents,...

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