Burak v. Burak, No. 97, Sept. Term, 2016.

CourtCourt of Special Appeals of Maryland
Writing for the CourtHotten, J.
Citation455 Md. 564,168 A.3d 883
Decision Date29 August 2017
Docket NumberNo. 97, Sept. Term, 2016.
Parties Natasha BURAK v. Mark BURAK, et al.

455 Md. 564
168 A.3d 883

Natasha BURAK
v.
Mark BURAK, et al.

No. 97, Sept. Term, 2016.

Court of Appeals of Maryland.

August 29, 2017


Argued by John Flyger (The Flyger Law Office, Rockville, MD; Scott A. Conwell, Conwell Law LLC, Jarrettsville, MD), on brief, for Petitioner.

Paul Griffin, Esquire, Child Justice, Inc., 901 K Street, NW, Suite 700, Washington, DC 20001, Ian Simmons, Esquire, Matthew Gill, Esquire, O'Melveny & Myers LLP, 1625 Eye Street, NW, Washington, DC 20006, Amici Curiae for Child Justice, Incorporated, Domestic Violence Legal Empowerment and Appeals Project, the Family Violence and Sexual Assault Institute, and the Leadership Counsel on Child Abuse and Interpersonal Violence.

Argued by Steven J. Gaba (Rockville, MD: Marjorie G. DiLima. Fait Wise & DiLima, Rockville, MD; Sara M. Donohue, Offit Kurman, Bethesda, MD), on brief, for Respondents.

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

Hotten, J.

455 Md. 574

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.

455 Md. 575

Natasha Burak ("Petitioner") and Mark Burak ("Father") were married in October

168 A.3d 889

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 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.

455 Md. 576

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.

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.

168 A.3d 890

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, required Father to

455 Md. 577

pay $500 per month in child support to the Grandparents, and stated a hearing would be set before a magistrate to determine Petitioner's child support obligations. On December 31, 2014, the Grandparents filed a Motion for Child Support in the circuit court. After a hearing on March 11, 2015, the magistrate issued recommendations for child support on March 24, 2015. The magistrate determined that the Grandparents were under "no legal obligation" to contribute to the Child's care, and recommended that Petitioner pay $1,467 per month due to her adjusted gross income and due to the "extraordinary medical expenses" that were claimed by the Grandparents for the Child's psychiatric and psychotherapeutic care. The magistrate also recommended that the interim order be modified to require Father pay $629 per month based on his unemployment benefits and due to the Child's "extraordinary medical expenses." On May 26, 2015 the circuit court entered an order granting the Grandparents' motion and ordered Petitioner to pay $1,467 per month in child support and increased Father's child support obligation from $500 to $629 per month. On June 19, 2015, Petitioner appealed the circuit court's decisions to the Court of Special Appeals. On December 7, 2016, in a reported opinion, the Court of Special Appeals held, inter alia , that (1) the circuit court did not abuse its discretion when it granted the Grandparents' motion for permissive intervention, (2) the circuit court did not abuse its discretion when it found that exceptional circumstances existed in the case at bar; and (3) the circuit court did not abuse its discretion in awarding child support to the Grandparents. See Burak v. Burak, et al. , 231 Md.App. 242, 150 A.3d 360 (2016).

For the reasons that follow, we shall reverse the judgment of the Court of Special Appeals.

BACKGROUND

I. Custody Proceedings

On October 7, 2006, Petitioner and Father were married. In June, 2008, their child was born. In late 2008, Petitioner and Father met M in their apartment complex and the triad

455 Md. 578

developed a friendship. Soon thereafter, Petitioner and Father approached M about beginning a consensual polyamorous relationship with them, which commenced in early 2009.3 At the time the polyamorous relationship began, Petitioner informed M that she had dissociative identity disorder ("DID")4 and that, in addition to her main identity, she also exhibited

168 A.3d 891

three alternate personalities named Morgan, Adrianna, and Lisa.5 Additionally, evidence was presented at the custody hearing indicating that, as part of the parties' couples counseling, see infra , Petitioner wrote a needs and wants list that reflected her needs and wants as well as those of Morgan and Adrianna. Petitioner testified that Father coerced her into writing Adrianna's portion of the needs and wants list by "threaten[ing] to take certain things away," including taking away the Child. Petitioner also acknowledged the existence of emails she wrote in 2006 that referred to Morgan, but...

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38 practice notes
  • Gizzo v. Gerstman, No. 3236 Sept. Term, 2018
    • United States
    • Court of Special Appeals of Maryland
    • April 1, 2020
    ...court will not set aside the trial court's factual findings unless those findings are clearly erroneous. See, e.g. , Burak v. Burak , 455 Md. 564, 616-17, 168 A.3d 883 (2017). To the extent that a custody decision 245 Md.App. 192 involves a legal question, such as the interpretation of a st......
  • David A. v. Karen S., No. 2481, Sept. Term, 2018
    • United States
    • Court of Special Appeals of Maryland
    • July 31, 2019
    ...intervenors. First, we know that custody and visitation disputes are not necessarily limited to two parties, see, e.g. , Burak v. Burak , 455 Md. 564, 626, 168 A.3d 883 (2017) (holding that grandparents who make proper prima facie showing are 213 A.3d 702 proper intervening parties in a cus......
  • E.N. v. T.R., No. 44, Sept. Term, 2020
    • United States
    • Court of Special Appeals of Maryland
    • July 12, 2021
    ...court could apply the best interests of the child standard." Id. at 61, 146 A.3d at 438 (citations omitted); see also Burak v. Burak, 455 Md. 564, 624, 168 A.3d 883, 918 (2017) (The Court held "that for a third-party to have standing to intervene in a custody action, he or she must plead su......
  • B. O. v. S. O., 1202, Sept. Term, 2020
    • United States
    • Court of Special Appeals of Maryland
    • September 8, 2021
    ...trial court] sees the witnesses and the parties, hears the testimony and has the opportunity to speak with the child." Burak v. Burak , 455 Md. 564, 617, 168 A.3d 883 (2017) (quoting In Re Yve S. , 373 Md. 551, 586, 819 A.2d 1030 (2003) ). Comparatively speaking, the trial court "is in a fa......
  • Request a trial to view additional results
38 cases
  • Gizzo v. Gerstman, No. 3236 Sept. Term, 2018
    • United States
    • Court of Special Appeals of Maryland
    • April 1, 2020
    ...court will not set aside the trial court's factual findings unless those findings are clearly erroneous. See, e.g. , Burak v. Burak , 455 Md. 564, 616-17, 168 A.3d 883 (2017). To the extent that a custody decision 245 Md.App. 192 involves a legal question, such as the interpretation of a st......
  • David A. v. Karen S., No. 2481, Sept. Term, 2018
    • United States
    • Court of Special Appeals of Maryland
    • July 31, 2019
    ...intervenors. First, we know that custody and visitation disputes are not necessarily limited to two parties, see, e.g. , Burak v. Burak , 455 Md. 564, 626, 168 A.3d 883 (2017) (holding that grandparents who make proper prima facie showing are 213 A.3d 702 proper intervening parties in a cus......
  • E.N. v. T.R., No. 44, Sept. Term, 2020
    • United States
    • Court of Special Appeals of Maryland
    • July 12, 2021
    ...court could apply the best interests of the child standard." Id. at 61, 146 A.3d at 438 (citations omitted); see also Burak v. Burak, 455 Md. 564, 624, 168 A.3d 883, 918 (2017) (The Court held "that for a third-party to have standing to intervene in a custody action, he or she must plead su......
  • B. O. v. S. O., 1202, Sept. Term, 2020
    • United States
    • Court of Special Appeals of Maryland
    • September 8, 2021
    ...trial court] sees the witnesses and the parties, hears the testimony and has the opportunity to speak with the child." Burak v. Burak , 455 Md. 564, 617, 168 A.3d 883 (2017) (quoting In Re Yve S. , 373 Md. 551, 586, 819 A.2d 1030 (2003) ). Comparatively speaking, the trial court "is in a fa......
  • Request a trial to view additional results

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