McDermott v. Dougherty

• Decision Date: 10 March 2005
• Docket Number: No. 58,58
• Citation: 869 A.2d 751,385 Md. 320
• Parties: Charles D. McDERMOTT v. Hugh J. DOUGHERTY, Sr., et al.
• Court: Maryland Court of Appeals

869 A.2d 751

385 Md. 320

Charles D. McDERMOTT v. Hugh J. DOUGHERTY, Sr., et al.

No. 58, Sept. Term, 2004.

Court of Appeals of Maryland.

March 10, 2005.

Laura D. Matney (Matney Law Firm, LLC, on the brief), Rockville, for petitioner.

J. David Ash, Towson, for respondents.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

CATHELL, J.

This appeal arises as an outgrowth of the lengthy and unfortunately acrimonious dispute over custody of Patrick Michael McDermott (hereinafter "Patrick" or "the child"), the minor son of petitioner Charles David McDermott (hereinafter "Mr. McDermott"), between Mr. McDermott and respondents, Hugh and Marjorie Dougherty, the child's maternal grandparents, (hereinafter "the Doughertys," or "maternal grandparents").¹

The Doughertys, along with Patrick's paternal grandparents, who do not appear as parties to the instant appeal and do not now appear to support the Doughertys, filed a complaint in the Circuit Court for Harford County against their adult children, Mr. McDermott and Ms. Dougherty, for Third-Party Custody of Patrick on February 12, 2002. Trial on the matter of custody subsequently took place on July 1 and 2, 2003. The circuit court issued its decision on September 8, 2003, awarding the maternal grandparents sole legal and physical custody of the child based upon that court's finding that Ms. Dougherty was "unfit," and, although not finding Mr. McDermott an "unfit" parent, the court found that his employment in the merchant marine, requiring him to spend months-long intervals at sea, constituted "exceptional circumstances" as that term was defined in Ross v. Hoffman, 280 Md. 172, 191, 372 A.2d 582, 593 (1977) ("Hoffman"), and the "best interest of the child" and need for a stable living situation thus warranted that custody be placed with the Doughertys. Mr. McDermott appealed this decision to the Court of Special Appeals, which affirmed the lower court's decision in an unreported April 5, 2004, opinion. The intermediate appellate court subsequently denied Mr. McDermott's Motion for Reconsideration on May 21, 2004, and thereafter he petitioned this Court for a Writ of Certiorari, which we granted on August 25, 2004. McDermott v. Dougherty, 382 Md. 688, 856 A.2d 724 (2004).²

Petitioner's appeal centers on the following questions:

"1. Is concern that the parent might not obtain employment and remain in the state of Maryland a high enough concern to meet the `only to prevent harm or potential harm to the child' standard required by the U.S. Supreme Court case of Troxel v. Granville and/or the high standards referenced in the previous cases cited therein, 530 U.S. 57[, 120 S.Ct. 2054, 147 L.Ed.2d 49] (2000)?

2. Do the facts involved in this case constitute `exceptional circumstances' as described in Shurupoff v. Vockroth, 372 Md. 639 (2003)?

3. Does the Order in this case violate the holding of the Maryland case of Schaefer v. Cusack, 124 Md.App. 288 (1998), which is that custody must be decided based on the circumstances as they are now and not based on a future plan or conjecture or based on past behavior that has ceased?" [Alterations added.]

We hold that in disputed custody cases where private third parties are attempting to gain custody of children from their natural parents, the trial court must first find that both natural parents are unfit to have custody of their children or that extraordinary circumstances exist which are significantly detrimental to the child remaining in the custody of the parent or parents, before a trial court should consider the "best interests of the child" standard as a means of deciding the dispute.

We further hold that under circumstances in which there is no finding of parental unfitness, the requirements of a parent's employment, such that he is required to be away at sea, or otherwise appropriately absent from the State for a period of time, and for which time he or she made appropriate arrangements for the care of the child, do not constitute "extraordinary or exceptional circumstances" to support the awarding of custody to a third party.

Accordingly, we shall reverse and direct the lower courts to grant custody of Patrick to petitioner. Although we find the declaration, announced by the plurality opinion in Troxel,³ affirming "the fundamental right of parents to make decisions concerning the care, custody, and control of their children," 530 U.S. 57, 66, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000), to be instructive, our determination also rests upon the potential for absurd results that might result from a holding that denies custody to a fit and willing parent on the basis that the means by which he or she supports himself or herself and his or her family calls for his or her periodic absence from the State although having arranged suitable and safe alternative care for the child, or based upon the fact that the child, in a particular case, might be "better raised" by grandparents. With our holding we need not reach the issue of whether the circuit court's order in the case sub judice improperly examined past behavior or future plans in deciding custody.

I. Facts

By the time of the current dispute there had been a lengthy series of events in the dispute over the custody of Patrick Michael McDermott, born April 30, 1995, to Charles David McDermott and Laura A. Dougherty, who were married on November 26, 1994, in Baltimore County and subsequently took up residence in Abingdon, Maryland. Their relationship having deteriorated, the spouses separated shortly after Patrick's birth. Suffice it to say, between the time this custody disagreement was launched by Mr. McDermott's September 29, 1995 filing, in the Circuit Court for Harford County, of his Complaint for Limited Divorce, Child Custody and Child Support from Ms. Dougherty, and the grandparents' February 2002 complaint for third-party custody, i.e., the action to which the instant appeal can be most directly traced, the various parties, whether represented by counsel or proceeding pro se, utilized the full measure of the court's resources in their filings of petitions and motions in regard to support and custody of Patrick.

Ms. Dougherty, who had some history of alcohol-related trouble, was convicted of her fourth drinking and driving offense in November 2001, which ultimately would result in a period of incarceration. On January 3, 2002, apparently just prior to her incarceration, Ms. Dougherty, who then had primary residential custody of Patrick, signed a power of attorney giving her parents, the Doughertys, authority to care for Patrick and make all decisions on his behalf. Apparently unaware of Ms. Dougherty's incarceration, Mr. McDermott filed a motion on January 8, 2002, seeking a temporary modification of a November 8, 2001, custody order and stated in his reasons for the petition, the following:

"The mother has left town, given power of attorney to parents and quit her job. Ms. Dougherty is scheduled for sentencing on 3/15/02 for up to 24 months. I am unemployed currently."

He requested that custody be shared by himself and the maternal grandparents. Sometime prior to January 10, 2002, and possibly as early as early December 2001, petitioner signed on to work a six-month seaman's contract at sea. Mr. McDermott executed a notarized letter on January 9, 2002, stating his desire that Patrick remain in the care and custody of the Doughertys at their home in Joppa, Maryland, through the end of the 2001-2002 academic year. In addition, Mr. McDermott wrote a letter, which appears to be dated January 10, 2002, to Patrick's court-appointed attorney and indicated that Mr. Dougherty, Patrick's grandfather, had responded that he and his wife did not know Ms. Dougherty's whereabouts when queried by Mr. McDermott.⁴

Apparently, after Mr. McDermott went to sea, the court signed an order to show cause in response to his Temporary Motion/Petition to Modify Custody and scheduled the matter for a show-cause hearing on January 14, 2002, requiring that the child's mother as well as the Doughertys be present.

Mr. McDermott departed on his ship in the first half of January 2002. While it is not manifest that any subterfuge occurred, it seems that petitioner went to sea believing that Ms. Dougherty still had legal custody of the child and not knowing of her incarceration or of the scheduled hearing on his petition.

At some point in time, what formerly had been a cooperative relationship between Mr. McDermott and the Doughertys deteriorated. The Doughertys' counsel apparently spoke with Mr. McDermott by telephone on January 14, 2002, while the latter was aboard ship, and informed him that Ms. Dougherty had begun a jail sentence on or about January 4, 2002. In affirming this conversation as well as Mr. McDermott's apparent consent that both sets of grandparents share joint legal custody of Patrick, the Doughertys' counsel prepared and filed in the Circuit Court for Harford County on February 12, 2002, a Complaint for Third-Party Custody and Motion for an Ex-parte Order, naming the Doughertys, as well as the McDermotts, Patrick's paternal grandparents, as plaintiffs.⁵ The paternal grandparents later noted, however, that they "never signed a document to be plaintiffs in this case, and have had a strained relationship with the Dougherty's [sic] during the period January to July 2002" when Mr. McDermott was at sea.

On February 13, 2002, the court signed an order providing that the grandparents, the Doughertys and the McDermotts, would share "temporary joint legal custody" and the Doughertys would have residential custody of Patrick. Visitation by the parents — one of whom was in jail, and the other at sea at the time — was ordered to "take place at the mutual convenience and approval of plaintiffs," i.e., the Doughertys.⁶

Mr. McDermott returned from sea in early July 2002 and the Doughertys, without any modification of the court's custody order,...