Gizzo v. Gerstman
| Decision Date | 01 April 2020 |
| Docket Number | No. 3236 Sept. Term, 2018,3236 Sept. Term, 2018 |
| Citation | 226 A.3d 372,245 Md.App. 168 |
| Parties | Frank Gerard GIZZO v. Kaycee Lauren GERSTMAN |
| Court | Court of Special Appeals of Maryland |
Argued by: Jonathan Martin Stepanuk (Spencer M. Hecht, Hecht & Associates, LLC, on the brief), Rockville, MD, for Appellant.
Argued by: Timothy Joseph Mummert (Mummert Law Firm, on the brief), Glen Burnie, MD, for Appellee.
Panel: Meredith, Arthur, Gould, JJ.
This appeal arises from what the trial judge called "a particularly difficult case" concerning child custody. Based on two separate incidents that occurred in 2015, the mother was found guilty of assaulting the father and neglecting their one-year-old child. The child was placed in the care of his father in Maryland, but the father eventually decided that the child should reside primarily with the child's paternal grandparents in New York. Meanwhile, the mother established a new home and family in California.
In 2019, the Circuit Court for Baltimore County held a two-day trial on the parents' competing claims for custody of their four-year-old child. The court found that the mother had demonstrated her fitness as a parent during the years following her neglect conviction and that there was no likelihood that the mother would commit further child abuse or neglect. The court deemed the mother's request for custody to be more genuine than the father's request, in light of his decision that the child should live with grandparents in another state. The court granted sole legal custody and primary physical custody of the child to the mother.
The father has appealed. Because we perceive no error or abuse of discretion, we will uphold the circuit court's custody determination.
Frank Gizzo ("Father") and Kaycee Gerstman ("Mother")1 first met in 2013 and soon began a romantic relationship. At that time, Father was 24 years old and Mother was 20 years old. They lived together for a few months in California before moving to New York. For a short time, they stayed with Father's parents in White Plains, until Father's father ("Grandfather")2 decided that he would no longer permit Mother to stay in that home.
Mother became pregnant sometime in early 2014. During several months of the pregnancy, Mother lived inside Father's car while Father continued to live in his parents' home.3 Mother moved into a homeless shelter during the final months of the pregnancy. Their son, G., was born in November 2014.
After the birth of G., Grandfather allowed Mother to move back into the White Plains home. While staying there, Mother had an altercation with Grandfather, in which she pushed him and kicked him. Soon after that altercation, Mother and Father decided to move to Maryland.
From March 2015 until August 2015, Father and Mother lived together with G. in an apartment in Baltimore County. Mother served as G.'s primary caregiver, while Father supported the family with his salary as a trainee with the Baltimore City Police Academy. During this time, Mother became pregnant with their second child.
Father and Mother experienced frequent disagreements throughout their relationship, but on August 8, 2015, their relationship began to deteriorate rapidly. On that day, Mother punched Father in the arm while they were attending a "Family Day" event for members of the Police Academy. Later that day, she slapped him in the face.
Based on those acts, Mother was charged with two counts of second-degree assault of Father. Separately, Father filed a civil petition for protection from domestic violence. Mother was arrested. Immediately after her release, she applied for criminal charges against Father and filed her own petition for a protective order, alleging that he had assaulted her during the Family Day incident. Before the court decided whether to issue a final protective order against either party, they mutually agreed to dismiss their respective petitions.
Mother left the family apartment with G. and moved into a shelter operated by the House of Ruth. Under a consent agreement, G. remained in the primary care of Mother, while Father had regular visits with G. on every other weekend and on weekday evenings.
On October 19, 2015, Mother received probation before judgment as to one count of second-degree assault of Father.4 The court imposed supervised probation, with the condition that she would complete a domestic violence education program with the House of Ruth. Ultimately, Mother did not fulfill that condition.5
With financial assistance through the House of Ruth, Mother moved with G. into a townhouse in West Baltimore, along with a few women she had met during her stay at the shelter.
This case began on August 17, 2015, when Father filed a complaint in the Circuit Court for Baltimore County, seeking sole legal custody and sole physical custody of G. Mother counterclaimed, seeking sole legal custody and primary physical custody of G. The custody case was stayed, however, after G. became the focus of a child abuse investigation and juvenile court proceedings.
On December 12, 2015, the Baltimore City Department of Social Services and the Baltimore City Police Department received reports of suspected child abuse at Mother's residence. Officers observed that G. had bruises on his face
and a bloodshot eye. Officers transported G. to a hospital, where the hospital staff discovered additional bruises on G.'s back. Mother claimed that G. fell off her bed and onto the floor after she had left G. with a roommate so that she could shower in another room. Mother admitted that she did not seek medical attention until after the police arrived.
Suspecting possible abuse, the Baltimore City Department of Social Services placed G. in emergency shelter care and filed a petition alleging that G. was a child in need of assistance. G. spent several weeks in a foster home before the juvenile court placed G. in his Father's care. Grandfather temporarily moved into Father's Maryland home to help Father care for G.
For her role in causing G.'s injuries, Mother was charged with child abuse, second-degree assault, reckless endangerment, and neglect of a minor. Mother initially spent 30 days in jail in connection with those charges. In March 2016, Mother entered a guilty plea to the charge of neglect of a minor, and the State declined to pursue the remaining charges. Mother received supervised probation, with the condition that she would stay for one year at Chrysalis House, a treatment center for pregnant women and women with young children. Mother also spent another 26 days in jail for violating her previous probation.
During the year after Father filed his complaint for custody of G., Mother made several accusations of abuse by Father, none of which have ever been substantiated. In September 2015, a court denied Mother's petition for a protective order because the hearing judge did not credit her testimony that Father assaulted her. In December 2015, Mother petitioned for a protective order based on allegations that G. suffered injuries during his visits with Father, but she dismissed her petition and later acknowledged that her allegations were untrue. At the juvenile court adjudicatory hearing in March 2016, Mother testified that Father raped her, but she later admitted that her testimony was untrue. According to Father, some of Mother's accusations triggered internal investigations by the police department and caused him to be placed on administrative leave for extended periods of time, which impeded his career progress and limited his opportunities to earn overtime wages.
Mother gave birth to the parties' daughter (G.'s younger sister) in April 2016. Shortly thereafter, Father petitioned to establish paternity of the daughter. In her answer, Mother acknowledged that Father was the biological father of the daughter. A few months later, however, the court dismissed the paternity case at the parties' request.6
At the end of 2016, Grandfather moved out of Father's apartment and returned to his home in New York. G. lived in Maryland with Father and Father's girlfriend until November 2017, when the relationship between Father and his girlfriend ended. At that time, Father decided that G. should live primarily with his grandparents in New York. Father began having visits with G. no more than six days per month.
Meanwhile, in March 2017, Mother moved back to California, taking the parties' infant daughter with her. After a brief stay with her parents, Mother found work in a series of restaurant management jobs. In July 2018, she married a restaurant manager who has custody of a son from a previous relationship. Mother stopped working outside the home after she became pregnant with her third child.
Despite participating in mediation, Father and Mother reached no agreement regarding custody of G. In April 2018, the circuit court held a hearing with the goal of establishing a temporary custody and visitation arrangement pending the trial. On an interim basis, the court granted sole legal custody and primary physical custody of G. to Father. The court permitted Mother to have two, two-hour visits with G. (their first in-person contact since her move to California) at the food court of a nearby shopping mall. The court ordered Father to provide Mother with access to G. through FaceTime or a comparable video chat service for up to 15 minutes, four times per week.
Mother's access with G. under the interim order became a subject of frequent disagreement. Because G. lived at Grandfather's home and because Father refused all phone communication with Mother, Father relied on Grandfather to facilitate the calls between Mother and G. Mother and Grandfather were not able to work cooperatively on scheduling calls. Father moved for a...
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