Ross v. Hoffman

• Decision Date: 25 April 1977
• Docket Number: No. 128,128
• Parties: Karen M. ROSS v. John H. HOFFMAN et ux.
• Court: Maryland Court of Appeals

Page 172

280 Md. 172

372 A.2d 582

Karen M. ROSS v. John H. HOFFMAN et ux.

No. 128.

Court of Appeals of Maryland.

April 25, 1977.

Ann M. Turnbull, Baltimore, for appellant.

Ronald S. Landsman, Baltimore, for appellees.

Argued before MURPHY, C. J., and SINGLEY, SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ.

ORTH, Judge.

Once again the courts have been called upon to decide who shall have custody of a minor child. In such disputes it is always the child who is not only the innocent victim, but who has the most at stake. Caught in the wake of marital discord, or adult indiscretion, or economic adversity, the well-being of the child, both present and future, is usually profoundly affected by the court's resolution of the private dispute over who shall be entrusted with its care. In more primitive societies where the large kinship group is the basic societal unit, child custody problems are solved by leaving the child with the dominant clan. In our society today, however, the social mores do not provide an automatic answer to custody questions. See Comment, 73 Yale L.J. 151 (1963).

I

In Maryland, resolving child custody questions is a function of the equity courts. The jurisdiction of a court of equity includes the custody, maintenance, visitation and support of a child. The court may direct who shall have the custody of a child, decide who shall be charged with its support and maintenance, and determine who shall have visitation rights. This jurisdiction is a continuing one, and the court may from time to time set aside or modify its decree or order concerning the child. Maryland Code (1974, 1975 Cum.Supp.) Courts and Judicial Proceedings Article § 3-602.

In exercising its jurisdiction over the custody of a child, the equity court performs two different but related functions: child protection and private- dispute settlement. See Mnookin, Child Custody Adjudication: Judicial Functions in the Face of Indeterminacy, 39 Law & Contemp. Prob. 226, 291 (1975). Child custody disputes fall into two categories with respect to those seeking custody: disputes between the biological parents and disputes between a biological parent and a third party, often a relative but not infrequently a foster parent, consanguineously unrelated to the child. In performing its child protection function and its private-dispute settlement function the court is governed by what is in the best interests of the particular child and most conducive to his welfare. This best interest standard is firmly entrenched in Maryland and is deemed to be of transcendent importance. ¹ In Burns v. Bines, 189 Md. 157, 162, 55 A.2d 487, 489 (1947), quoting Barnard v. Godfrey, 157 Md. 264, 267, 145 A. 614, 615 (1929), we observed that the statute giving equity courts jurisdiction over the custody of children 'is declaratory of the inherent power of courts of equity over minors, and (such jurisdiction) should be exercised with the paramount purpose in view of securing the welfare and promoting the best interest of the children.' We noted in Dietrich v. Anderson, 185 Md. 103, 117, 43 A.2d 186 (1945) that the statute has been so uniformly construed. We said in Butler v. Perry, 210 Md. 332, 342, 123 A.2d 453, 458 (1956): 'Of course, it is too elementary to be stressed that the welfare of the child is the controlling test in a custody case.'

The best interest standard controls when the dispute over custody of a child is between his biological father and mother. See Hall v. Triche, 258 Md. 385, 386, 266 A.2d 20 (1970); Goldschmiedt v. Goldschmiedt, 258 Md. 22, 25, 265 A.2d 264 (1970); Krebs v. Krebs, 255 Md. 264, 266, 257 A.2d 428 (1969); Orndoff v. Orndoff, 252 Md. 519, 522, 250 A.2d 627 (1969); Fanning v. Warfield, 252 Md. 18, 24, 248 A.2d 890 (1969); Shanbarker v. Dalton, 251 Md. 252, 257, 247 A.2d 278 (1968); Heaver v. Bradley, 244 Md. 233, 242, 223 A.2d 568 (1966); Snow v. Watson, 240 Md. 712, 713, 213 A.2d 748 (1965); Stimis v. Stimis, 186 Md. 489, 491, 47 A.2d 497 (1946). It also controls when the dispute over custody is between a biological parent and a third party. We said in Dietrich v. Anderson, supra, 185 Md. at 117-118, 43 A.2d at 192:

This policy of the law could hardly be expressed with more clarity or emphasis than in the case cited in Kartman v. Kartman, 163 Md. 19, 22, 161 A. 269 (1932), namely, Re Petition of Frank B. Bort, 25 Kan. 308, 37 Am.Rep. 255: 'When the custody of children is the question . . . the best interest of the children is the paramount fact. Rights of father and mother sink into insignificance before that. Even when father and mother are living together, a court has the power, if the best interest of the child require it, to take it away from both parents and commit the custody to a third person. In other words, a court of chancery stands as a guardian of all children and may interfere at any time and in any way to protect and advance their welfare and interests.' (emphasis added).

See DeGrange v. Kline, 254 Md. 240, 243, 254 A.2d 353 (1969); McClary v. Follett, Jr., 226 Md. 436, 441, 174 A.2d 66 (1961); Melton v. Connolly, 219 Md. 184, 188, 148 A.2d 387 (1959); Trenton v. Christ, 216 Md. 418, 420-423, 140 A.2d 660 (1958); Ross v. Pick, 199 Md. 341, 351, 86 A.2d 463 (1952); Piotrowski v. State, 179 Md. 377, 382, 18 A.2d 199 (1941). In parent-third party disputes, however, there is a twist to the application of the best interest standard.

It was the rule of the common law that parents have the natural right to the custody of their children, and it once was that, 'as between mother and father, the primary right to the custody of children is in the father, since it is his duty to provide for the children's protection, maintenance, and education.' Carter v. Carter, 156 Md. 500, 505, 144 A. 490, 492 (1929); See Dunnigan v. Dunnigan, 182 Md. 47, 51-52, 31 A.2d 634 (1943); Piotrowski v. State, supra, 179 Md. at 381-382, 18 A.2d 199. Neither of these common law concepts is now viable in Maryland. Our decisions make clear, as we have indicated, that the right of a parent to the custody of the child would not be enforced inexorably, contrary to the best interest of the child, on the theory of an absolute legal right. ² As between father and mother, the primary right to custody in the father has been abrogated by legislative enactment which, at the same time, affirmed the application of the best interest standard. Maryland Code (1957, 1970 Repl.Vol., 1974 Cum.Supp.) Art. 72A, § 1. ³ Nevertheless, there persists in this State in a contest over the custody of a child, but always subject to the best interest standard, that part of the common law concept which declares that the right of either parent is ordinarily superior to that of anyone else. Ross v. Pick, supra, 199 Md. at 351, 86 A.2d 463. We declared in Kartman v. Kartman, supra, 163 Md. at 23, 161 A. at 270:

(C)ourts are bound, in determining the fate of children, and in fixing the environment which is thereafter to direct the course of their lives, to recognize the natural right of parents to the custody of their children, and unless convinced that it would be injurious to their welfare, to maintain the relationship which society has always recognized as the one most to be desired.

In Ross v. Pick, supra, 199 Md. at 351, 86 A.2d at 468, we set out this principle in the form of a presumption and in language which we have from time to time quoted and in content which we have consistently applied:

Where parents claim the custody of a child, there is a prima facie presumption that the child's welfare will be best subserved in the care and custody of its parents rather than in the custody of others, and the burden is then cast upon the parties opposing them to show the contrary. ⁴

See DeGrange v. Kline, supra, 254 Md. at 242-243; McClary v. Follett, Jr., supra, 226 Md. at 442, 174 A.2d 66; Trenton v. Christ, supra, 216 Md. at 420, 140 A.2d 660. We have indicated how the presumption may be rebutted. In Ross v. Pick, supra, 199 Md. at 351, 86 A.2d at 468, we pointed out that the ordinary entitlement of parents to the custody of their minor children by the natural law, the common law, and the statute, is not an absolute one and declared that the right 'may be forfeited where it appears that any parent is unfit to have custody of a child, or where some exceptional circumstances render such custody detrimental to the best interests of the child.' This principle was recognized by us and applied prior to Ross, see, for example, Dietrich v. Anderson, supra and Piotrowski v. State, supra, and thereafter, see, for example, McClary v. Follett, Jr., supra, and Trenton v. Christ, supra. See also DeGrange v. Kline, supra, and Melton v. Connolly, supra.

To recapitulate: the best interest of the child standard is always determinative in child custody disputes. When the dispute is between a biological parent and a third party, it is presumed that the child's best interest is subserved by custody in the parent. That presumption is overcome and such custody will be denied if (a) the parent is unfit to have custody, or (b) if there are such exceptional circumstances as make such custody detrimental to the best interest of the child. Therefore, in parent-third party disputes over custody, it is only upon a determination by the equity court that the parent is unfit or that there are exceptional circumstances which make custody in the parent detrimental to the best interest of the child, that the court need inquire into the best interest of the child in order to make a proper custodial disposition.

II

The case sub judice presents quarely whether there were such exceptional circumstances as to make custody in the biological mother detrimental to the best interest of the child. A contest for the custody of Melinda Dawn Sterquel, now ten years of age, between her mother, Karen Ross and Mr. and Mrs. John Hoffman, who are not consanguineously related to the child, was decided by the Circuit...