Cooke v. Cooke, 757

• Decision Date: 24 May 1974
• Docket Number: No. 757,757
• Citation: 21 Md.App. 376,319 A.2d 841
• Parties: , 70 A.L.R.3d 255 Eugene Pratt COOKE, Jr. v. Kathleen Bradigan COOKE.
• Court: Court of Special Appeals of Maryland

Page 376

21 Md.App. 376

319 A.2d 841, 70 A.L.R.3d 255

Eugene Pratt COOKE, Jr. v. Kathleen Bradigan COOKE.

No. 757.

Court of Special Appeals of Maryland.

May 24, 1974.

Norman F. Summers, Baltimore, with whom was Julian S. Brewer, Jr., Arbutus, on the brief, for appellant.

Submitted on brief by William G. Kolodner, Baltimore, for appellee.

Argued before MOYLAN, GILBERT and LOWE, JJ.

LOWE, Judge.

Eugene Pratt Cooke, III, born April 28, 1970, was the subject of the custody proceeding from which his father, Eugene Pratt Cooke, Jr., now appeals. The marriage of Mr. Cooke and Kathleen Bradigan Cooke survived its first four years somewhat less than blissfully, but eventually it resulted in separate abodes for Eugene III's parents. At the time this custody proceeding was tried in the Circuit Court for Baltimore County, each lived with his or her respective parents.

The separation took place on July 27, 1972. The child commenced its unsettled and unsettling existence with its mother, at the home of her parents. Four days later, Appellant volunteered to take his estranged wife to work and to 'baby sit' with his son. During the sojourn to her place of employment, an argument ensued and she got out of the automobile and was left on the roadside by Mr. Cooke who then drove off with the child.

Appellee telephoned her husband as soon as she arrived home. He refused to return the child unless she agreed to return to live with him. Faced with this dilemma, Appellee filed a petition for custody on August 11, 1972. She was awarded temporary custody by ex parte order signed the next day by Judge Lester L. Barrett. When an attempt was made to execute the order neither husband nor child could be found. Appellant had secluded the child at a Holiday Inn in Catonsville.

On August 18, 1972, the husband filed an answer and cross-petition for custody. Judge John E. Raine secured an immediate investigation of the paternal grandparents' home by the Probation Department and subsequently signed an order, dated August 24, 1972, countermanding Judge Barrett's order, and granting temporary custody to the father.

In her answer to the cross-petition on September 5, 1972, Appellee prayed rights of visitation which had been denied her to that date. Designated visitation dates were prescribed upon hearing before a master a month later.

Following a full hearing in open court on February 22 and 23 of 19738 Judge Walter M. Jenifer awarded custody to the mother by written opinion and decree dated July 25, 1973. On appeal Appellant attacks the Chancellor's decision and the reasons he set forth in his six page opinion.

The opinion stated that the Chancellor relied upon two principles 'which should guide any court in custody cases . . ..'

'The paramount consideration is to determine what course would subserve the best interests and welfare of the child involved. The other long-settled principle of law which must be given consideration is the preference to be afforded the natural mother where a young and immature child is before the court.' (Emphasis added.)

Quoting from Hild v. Hild, 221 Md. 349, 157 A.2d 442, and at length from Kirstukas v. Kirstukas, 14 Md.App. 190, 286 A.2d 535, the Chancellor articulated the process he had used to arrive at his decision and the reasons supporting it.

'This Court is of the opinion that when the above principles are placed upon the balance scales, said scales are tilted in favor of the natural mother.'

He concluded by analogizing the instant case to Pitts v. Pitts, 181 Md. 182, and quoted from page 193, 29 A.2d 300 page 305:

'. . . To deprive this infant child of the society, companionship and the instinctive and natural maternal love of her mother, a young woman who, at the time of the passage of the order appealed from, was capable of taking care of and rearing the infant in a home where it would be provided with all the necessities of life, would hardly be to the interests of that child. The mother-in-law, Mrs. Pitts, spoke of the appellee, when in good health, as the loveliest, the quietest and the gentlest girl she ever knew, that she was perfectly lovely always. At the home of Mr. and Mrs. Tilghman G. Pitts, Sr., the infant received adequate care and attention by a nurse. However, the association of the child with its young mother in suitable surroundings is of primary importance in the case now before us.'

Although a thorough review of the record brings us to the same conclusion, we cannot stand mute when faced with the wrongful application of the 'second principle' or maternal preference. Before discussing that principle we hasten to note that we are not compelled to do so vis a vis the Maryland 'Equal Rights Amendment' (ERA.) ¹ since Appellant neither raised nor argued it. It would be misleading for us to write, however, without acknowledging that we do so in its shadow.

Any possibility of a denial of equal rights properly gives us especial pause since 'equality' is the very foundation of this society. The term itself has a ring, as do ritualistic incantations, and well it should, for it occupies a most exalted position in a democracy's scale of values. The awe it inspires should not, however, cause us to forget that the 'self-evident truth' of equality of creation of all persons was not meant to describe human congenital endowments, ² but rather their political and legal rights.

Suffice to say that if the presumption of 'maternal preference' is utilized within the restrictions articulated in the cases espousing it, a proper application neither denies nor abridges the equality of rights of either party. The 'rights' of the parents are not the issue. ³ They have been overridden by the singular interests of the child which the parents in turn have submerged by their own acts, in a ratio directly proportional to their responsibility for the family's division. The child's best interest, the 'cardinal principle' and the 'paramount consideration' as described by the Chancellor, is not a 'principle to be placed upon the balance scales' but rather is the measure by which all else is to be decided. No factor will be given weight that is not homogeneous with that 'cardinal principle.'

In Kirstukas, supra, 14 Md.App. at 196, 286 A.2d at 538, Judge Moylan distilled from the appropriate cases a single limitation placed upon the application of the maternal preference. 'Every statement of the preference is hedged about by the context, 'all else being equal." The presumption is obviously intended to serve the limited function of a 'tie-breaker.' However, some courts seem inclined to repeat it as an easy answer. Relying upon the compelling language of the cases discussing that 'visceral bond . . . and primordial tie,' these courts have come to weigh it first and most heavily on the custodial scales.

We concede that it is unlikely that litigants will have parental qualities so equally balanced that resort to the maternal...