A Crowded And Complex Relationship

In an 117-page opinion (with dissent) the Maryland Court of Appeals reversed a custody award to the child’s paternal grandparents.

Not your average family situation per the majority

Natasha Burak (“Petitioner”) and Mark Burak (“Father”) were married in October 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.

The court sets out at length the history of the failed marriage and the grandparents’ primary role with the child

On May 24, 2013, Father, Petitioner and M went to King’s Dominion. Near the end of the day, an argument ensued between Petitioner and Father that involved screaming, and devolved into violent actions taken by both parties.

That altercation and a subsequent one resulted in a TRO against the father.

Father conceded that the two got into an “ugly and vicious[]” argument that morning [of the second incident] , but testified that “[i]t was no different from 10,000 other fights we’d had before[]” and he stated that he never threatened to kill Petitioner.

The court noted

At the time the polyamorous relationship began, Petitioner informed M that she had dissociative identity disorder (“DID”) and that, in addition to her main identity, she also exhibited three alternate personalities named Morgan, Adrianna, and Lisa.

And footnoted

At the custody hearing, an email was produced that was sent from Petitioner to M with Father cc’ed on February 4, 2013. The email detailed the dates and times for introductory courses on bondage discipline submission and masochism (“BDSM”). Father testified that he, Petitioner, and M attended one of the introductory classes together and that he and M attended a separate class with just the two of them. M stated that Petitioner and Father were not really involved in BDSM activities together.

And the child had issues as well

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”). The Child was subsequently allowed to return to school after the referral was completed.

The court here held that the grandparents could intervene in the custody case but overturned the finding of the mother’s parental unfitness

We conclude that because the hearing judge’s factual findings in this case did not support his conclusions that Petitioner was unfit and that exceptional circumstances existed, the hearing judge, thereby, also abused his discretion in granting custody of the Child to the Grandparents because the presumption favoring Petitioner retaining custody of the Child was not rebutted by the facts in this case.

Because we hold that the circuit court abused its discretion in granting custody of the Child to the Grandparents, we also conclude that the circuit court erred in ordering Petitioner to pay child support to the Grandparents.

Judge Getty dissents  and would hold the unfitness issue unpreserved. 

Finally, even if the Majority is correct to consider the merits of the trial court’s rulings instead of simply vacating the decision and remanding for the trial court to apply its new standards, I disagree with its conclusions that the trial court abused its discretion in finding that Ms. Burak was unfit and that exceptional circumstances merited granting custody to the Grandparents. The Majority correctly recognizes that in a child custody case a trial court’s factual findings are scrutinized under the clearly erroneous standard, and its ultimate conclusions reached by applying the law to those factual findings are reviewed under an abuse of discretion standard. Majority Slip Op. at 45-46 (citing In re Yve S., 373 Md. 551, 585-86 (2003)). However, the Majority misapplies these standards, and has failed to afford proper deference to the decisions of the trial court.

He quotes the Court of Special Appeals

On the actual record that was developed, the court acted well within its discretion when it found the parents unfit. The record supports the court’s finding that Wife still takes or is ready to take drugs and that she has struggled with parenting and properly caring for Child. The court heard and considered testimony regarding Wife’s inability and uneasiness in caring for Child, and that her difficulties often resulted in her and Husband placing Child in the Grandparents’ care. And the record revealed real questions about Wife’s compliance with the parties’ agreed drug testing regiment. She failed to comply with the Child’s Best Interest Attorney’s (“BIA”) request for a random drug test on July 14, 2014. And although she eventually sent the results of a test the BIA requested about a month before the custody merits hearing, she refused to sign the release that would allow her results to be sent directly to the BIA. This meant that Wife received and could review her results before the BIA got them, which undermined the credibility of any negative results. Wife obviously disputes these findings and the factual premises underlying them, but the record contained ample evidence that could support the court’s finding that she and Husband (who doesn’t contest the finding) were unfit parents.

Judge McDonald joined the dissent.

The oral argument is linked here. (Mike Frisch)