Burak v. Burak

Natasha Burak v. Mark Burak, et al., No. 97, September Term 2016. Opinion by Hotten,
J.

FAMILY LAW — CUSTODY — THIRD-PARTIES — PERMISSIVE
INTERVENTION
The Court of Appeals held that there is no procedural bar prohibiting a third-party from
seeking to intervene in a custody dispute between parents because Maryland Rule 2-214
allows any person to intervene in an action “when the person’s claim or defense has a
question of law or fact in common with the action.” Maryland Rule 2-214(b)(1). The
Court also held that because a third-party may only obtain custody of a child over the
child’s biological parents if the third-party can demonstrate that the parents are either unfit
or that exceptional circumstances detrimental to the child exist, the third-party seeking to
intervene in an existing custody action must make a prima facie showing in his or her
pleading that the parents are either unfit or that exceptional circumstances exist. See
McDermott v. Dougherty, 385 Md. 320, 325, 869 A.2d 751, 754 (2005). The Court
concluded that the Grandparents’ Motion for Permissive Intervention contained sufficient
factual allegations to make a prima facie showing that the parents may be unfit or that
exceptional circumstances existed.

FAMILY LAW — CUSTODY — THIRD-PARTIES — UNFITNESS
The Court of Appeals held that in determining whether a parent is unfit – sufficient to
overcome the presumption favoring parental custody in a third-party custody dispute – the
court may consider whether: (1) the parent has neglected the child by manifesting such
indifference to the child’s welfare that it reflects a lack of intent or an inability to discharge
his or her parental duties; (2) the parent has abandoned the child; (3) there is evidence that
the parent inflicted or allowed another person to inflict physical or mental injury on the
child, including, but not limited to physical, sexual, or emotional abuse; (4) the parent
suffers from an emotional or mental illness that has a detrimental impact on the parent’s
ability to care and provide for the child; (5) the parent otherwise demonstrates a
renunciation of his or her duties to care and provide for the child; and (6) the parent has
engaged in behavior or conduct that is detrimental to the child’s welfare. The Court
concluded that although several of the hearing judge’s findings that served as the basis for
his conclusion that the mother was unfit implicated several of the factors above, because
the majority of the hearing judge’s findings were not supported by the record and were,
therefore, erroneous, the hearing judge abused his discretion in finding that Petitioner was
an unfit parent.

FAMILY LAW — CUSTODY — THIRD-PARTIES — EXTRAORDINARY
CIRCUMSTANCES
The Court of Appeals held that the hearing judge erred in applying the seven factors
contained in Ross v. Hoffman, 280 Md. 172, 191, 372 A.2d 582, 593 (1977), to the facts in
the case at bar and, therefore, abused his discretion in concluding that exceptional
circumstances existed in this case. The hearing judge erred in finding that the “length of
time” the child at issue “had been away from” Petitioner was “whenever they were going
to do some tripping[]” because the first Hoffman factor only applies to circumstances where
a biological parent has given constructive custody of the child to a third-party over a long
period of time, and ample evidence was presented reflecting that Petitioner has been an
active custodian of the child since he was born. The hearing judge also erred in concluding
that the Grandparents had assumed care of the child “from the time of [his] birth[]” because
he ignored the facts presented at the hearing reflecting that Petitioner has been continuously
and actively involved in the child’s care since birth. The hearing judge also erred in
drawing the conclusion that if the child remained in Petitioner’s custody, he would likely
fail or continue to be in crisis because ample testimony presented indicated that Petitioner
was responsive to the child’s behavioral difficulties and was actively working with both
the child’s school and her own therapist to identify ways to help the child address his
behavioral issues. The hearing judge also erred in failing to make substantive factual
findings in regard to the third Hoffman factor, which considers the “possible emotional
effect on the child of a change of custody,” and the fourth Hoffman factor, which considers
the “period of time which elapsed before the parent sought to reclaim the child.” Hoffman,
280 Md. at 191, 372 A.2d at 593. The Court concluded that the hearing judge did not err
in finding that the child’s relationship with his Grandparents was “extremely strong” and
the Court deferred to the hearing judge’s determination that there was no “intensity or
genuineness” on Petitioner’s part in having custody of the child. See id. See McDermott,
385 Md. at 325, 869 A.2d at 754.
Circuit Court for Montgomery County
Case No. 112675-FL
Argued: June 2, 2017 IN THE COURT OF APPEALS

OF MARYLAND

No. 97

September Term, 2016

__________________________________

NATASHA BURAK
v.
MARK BURAK, et al.
__________________________________

Barbera, C.J.,
Greene,
Adkins,
McDonald,
Watts,
Hotten,
Getty,

JJ.
__________________________________

Opinion by Hotten, J.
Watts, J., joins in judgment only.
McDonald and Getty, JJ., dissent.
__________________________________

Filed: August 29, 2017
 We consider whether the Circuit Court for Montgomery County properly

determined that the grandparents of a minor child may intervene in a custody action

between the child’s parents and whether the circuit court abused its discretion in concluding

that the mother was unfit and that “exceptional circumstances” existed in the present case

that were sufficient to overcome the constitutional presumption favoring parental custody

and authorized the circuit court to grant custody of the child to the grandparents pursuant

to the “best interests of the child” standard. We also consider whether the circuit court

properly excluded consideration of the grandparents’ financial resources in determining

child support and whether the amount of child support the circuit court required the mother

to contribute to the care of the child was correct.

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

4
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.

On January 14, 2014, a pendente lite consent agreement reached by the parties was

placed on the record. Pursuant to the agreement, Petitioner was granted custody of the

Child, but Father retained visitation rights that were supervised by the Grandparents.

Petitioner and Father were also required to undergo random drug testing and attend therapy.

Father passed all his subsequent drug tests, but Petitioner tested positive for marijuana in

one of the tests. On February 20, 2014, the custody evaluator issued her report,

recommending that Petitioner have custody of the Child with Father continuing to have a

right to visitation, both parties receive a mental health evaluation and a psychiatric

consultation, and both parties continue to be subject to random drug testing.

On April 24, 2014, the Grandparents filed a motion to intervene in the custody action

between Petitioner and Father, seeking custody of the Child in light of Petitioner and

Father’s illicit drug use and given the strong role that the Grandparents had played in the

Child’s life since birth. Petitioner opposed the Grandparents’ intervention, but the circuit

court granted the Grandparents’ motion on July 25, 2014. Also in July 2014, Petitioner’s

biological daughter’s adoptive family (“the Ks”)1 moved into the marital home with

Petitioner and the Child.

1
The Ks include Mr. and Mrs. K, and their biological daughter.
5
 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”).2 The Child was subsequently allowed to return to school after the

referral was completed.

Between September 15 and September 19, 2014, the circuit court held a custody

hearing. Thereafter, the circuit court issued an oral ruling, finding that both Petitioner and

Father were unfit parents and that exceptional circumstances existed in the case. The

circuit court granted physical and legal custody of the Child to the Grandparents at the

conclusion of the hearing but held that both Petitioner and Father retained the right to

visitation. The circuit court entered an interim order on September 30, 2014 that granted

physical and legal custody of the Child to the Grandparents, required Father to pay $500

per month in child support to the Grandparents, and stated a hearing would be set before a

magistrate to determine Petitioner’s child support obligations. On December 31, 2014, the

Grandparents filed a Motion for Child Support in the circuit court. After a hearing on

2
The Crisis Center provides crisis services, including emergency psychiatric
evaluations, full crisis assessments, and treatment referrals for both psychiatric and
situational crises. See DEP’T OF HEALTH & HUMAN SERVICES: 24 HOUR CRISIS CENTER,
https://perma.cc/ENB5-8LHY (last visited: June 23, 2017).

6
March 11, 2015, the magistrate issued recommendations for child support on March 24,

2015. The magistrate determined that the Grandparents were under “no legal obligation”

to contribute to the Child’s care, and recommended that Petitioner pay $1,467 per month

due to her adjusted gross income and due to the “extraordinary medical expenses” that were

claimed by the Grandparents for the Child’s psychiatric and psychotherapeutic care. The

magistrate also recommended that the interim order be modified to require Father pay $629

per month based on his unemployment benefits and due to the Child’s “extraordinary

medical expenses.” On May 26, 2015 the circuit court entered an order granting the

Grandparents’ motion and ordered Petitioner to pay $1,467 per month in child support and

increased Father’s child support obligation from $500 to $629 per month. On June 19,

2015, Petitioner appealed the circuit court’s decisions to the Court of Special Appeals. On

December 7, 2016, in a reported opinion, the Court of Special Appeals held, inter alia, that

(1) the circuit court did not abuse its discretion when it granted the Grandparents’ motion

for permissive intervention, (2) the circuit court did not abuse its discretion when it found

that exceptional circumstances existed in the case at bar; and (3) the circuit court did not

abuse its discretion in awarding child support to the Grandparents. See Burak v. Burak, et

al., 231 Md. App. 242, 150 A.3d 360 (2016).

For the reasons that follow, we shall reverse the judgment of the Court of Special

Appeals.

7
 BACKGROUND

I. Custody Proceedings

On October 7, 2006, Petitioner and Father were married. In June, 2008, their child

was born. In late 2008, Petitioner and Father met M in their apartment complex and the

triad developed a friendship. Soon thereafter, Petitioner and Father approached M about

beginning a consensual polyamorous relationship with them, which commenced in early

2009.3 At the time the polyamorous relationship began, Petitioner informed M that she

had dissociative identity disorder (“DID”)4 and that, in addition to her main identity, she

also exhibited three alternate personalities named Morgan, Adrianna, and Lisa.5

Additionally, evidence was presented at the custody hearing indicating that, as part of the

3
Petitioner acknowledged that she consented to the polyamorous relationship “to
please [Father] at the time.” The record also indicates that Petitioner continued to have a
sexual relationship with an ex-boyfriend, and that they had sexual relations between three
and six times while Petitioner was also engaged in the polyamorous relationship with
Father and M.
4
The Diagnostic and Statistical Manual of Mental Disorders (“DSM-V”), states that
the defining feature of DID is the presence of two or more distinct personality states or an
experience of possession. Am. Psychiatric Ass’n, DIAGNOSTIC AND STATISTICAL MANUAL
OF MENTAL DISORDERS (5th Edition 2013), https://perma.cc/TW2S-7SEW (last accessed:
July 5, 2017). The DSM-V also explains that the overtness or covertness of these
personality states will vary as a function of “psychological motivation, current level of
stress, culture, internal conflicts and dynamics, and emotional resilience. Sustained periods
of identity disruption may occur when psychosocial pressures are severe and/or
prolonged.” Id. (citation omitted).
5
Father testified that a week before their marriage, Petitioner told him that she had
been diagnosed with DID and disclosed the identities of her three alter egos to him. Father
also stated that he had observed Petitioner shift into the different alter egos, with the most
frequent being Morgan whom he referred to as the “protector.” The record reflects that
Petitioner was never officially diagnosed by a therapist with DID.

8
parties’ couples counseling, see infra, Petitioner wrote a needs and wants list that reflected

her needs and wants as well as those of Morgan and Adrianna. Petitioner testified that

Father coerced her into writing Adrianna’s portion of the needs and wants list by

“threaten[ing] to take certain things away,” including taking away the Child. Petitioner

also acknowledged the existence of emails she wrote in 2006 that referred to Morgan, but

stated that Morgan was a nickname she had been given to her by friends and that she used

the name in role-playing activities she engaged in with Father. Another email from 2008

that was allegedly sent by Petitioner referenced that Adrianna was “refusing to come out[.]”

Petitioner testified she was not sure whether she wrote that email or not because Father had

access to the email account that the email was sent from.

In addition to the sexual relationship between Petitioner, Father, and M, the three

also used drugs together, including marijuana, mushrooms, ecstasy, and cocaine. The three

would schedule their drug use and sexual relations to allow Petitioner and Father to

coordinate childcare with the Grandparents in the Grandparents’ home. Testimony from

the custody hearing reflects that the drug use and sexual relations would occur “[a]nywhere

from every other weekend to once a month, to sometimes it would be a few months.”

Petitioner also maintained a calendar that recorded the parties’ drug and sexual relations

schedules.

On June 11, 2011, with money given to them by the Grandparents, Petitioner and

Father purchased a five-bedroom home in Silver Spring, Maryland. Sometime in 2012, M

moved into the marital home with Petitioner, Father, and the Child, and the parties

9
continued their polyamorous relationship and drug use.6 The parties also divided up

chores, M would sometimes babysit the Child while Petitioner and Father worked, and the

parties rotated cooking dinner.

Father testified that the marital relationship became increasingly strained during

2012, and that he and Petitioner engaged in verbal altercations that involved name-calling

and screaming. Between September 2012 and February 2013,7 Petitioner, Father, and M

participated in couple’s counseling.8 In December 2012, the sexual relationship between

Petitioner and M ended,9 but the couple continued having a relationship that included

6
The record indicates that the parties would sometimes smoke marijuana and
engage in sexual relations while the Child was in the house, but the Child was either asleep
or he was in his bedroom at the time of the activity. Father and M both testified that the
Child never walked in on the parties while they were using drugs or engaging in sexual
relations. M acknowledged, however, that the Child would sometimes come into the
bedroom when all three were in bed together and that the Child was aware of the parties’
various sleeping arrangements. M also acknowledged that the parties’ kept sex toys in the
marital home, but stated that they were confined to her bedroom in the basement, and that
the Child was supposed to knock before entering her bedroom.
7
The parties’ stopped attending couple’s therapy in February 2013 when Father
stormed out of a session after Petitioner stated that she wanted M to move out of the marital
home and the therapist agreed.
8
Father only agreed to attend counseling if M could also participate.
9
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.

10
cooking, cuddling, watching television together, and sleeping in the same bed. Father and

M continued to have a sexual relationship.

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.10 On May 30, 2013, the parties got into

another fight, and Petitioner testified that:

10
Petitioner and Father disagree regarding the circumstances of the fight.
Petitioner testified at the custody hearing that:

[Father] and I ended up getting into a fight at the end of the day that started
off in the car. I had gotten out of the car to stretch, because I had gone to the
car instead of being in the park. Since they had gone off and, and I mean they
by [Father] and [M], had gone off and done their own thing.

I had gotten out of the car to stretch, and [Father] basically got physical and
violent. Pushing me down to the ground to the point where I had to bite him
to get out. I had gone to close the car door without realizing that his hand was
in there. So it was a huge, big fight. [Father] had smacked me and then I had
gone to the other side of the car and gotten in. To where he was verbally
screaming at me. Telling me that, you know, he should have hit me harder
and that he didn’t really want me alive, to be honest.
* * *
Father testified at the hearing that:

We had a really good day up until the very end. I forget what the skirmish
was about. There was a disagreement. [Petitioner] walked off. [M] walked
off. I chased after [Petitioner]. We were supposed to meet at a certain spot,
if we got separated. She wasn’t there. I went back to the car and we had a, a
– I got in the backseat of the car. She was in the front seat in the driver’s seat.
We screamed at each other. We were cussing at each other. She got out of
the front seat of the car and said do not follow me. And walked beyond the,
the front of the car. I got out of the car to try to get into the driver’s side of
the car. It was my car.
(continued . . .)

11
 [W]hen we went to go take [the Child] to daycare and go to work, since we
working together at the time, he, we were bickering most of the morning, and
then when we got into the car, on the way to daycare, he threatened to kill
me twice in front of my son. And then when I dropped [the Child] off, that’s
when the concern was raised by my son in regard to the arguments.

* * *

Father conceded that the two got into an “ugly and vicious[]” argument that morning, 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. On the same day, in response to these two

incidents, Petitioner filed for and received a Temporary Restraining Order (“TRO”) against

Father in the Circuit Court for Montgomery County. On June 6, 2013, the circuit court

issued a Final Protective Order that found by clear and convincing evidence that Father

had assaulted Petitioner and ordered that Father not contact Petitioner or the Child for one

year, but also authorized supervised visitation at the Grandparents’ house.11 Father was

also ordered to vacate the marital home, which he subsequently did. M remained in the

house with Petitioner and the Child until the end of June 2013.

(. . . continued)
She turned and charged the car and slammed my door, slammed the door on
my arm. I was pushing the door back and forth with her and she bit me and I
smacked her.
* * *
11
The record reflects that on September 26, 2013, Father filed a Petition to
Modify/Rescind Protective Order, which was granted by the circuit court, after a hearing,
on November 15, 2013. On January 22, 2014, Father filed a Second Petition to
Modify/Rescind Protective Order, which was granted by the circuit court, after a hearing,
on March 7, 2014.

12
 On July 11, 2013, Petitioner filed a Complaint for Absolute Divorce in the Circuit

Court for Montgomery County. On August 27, 2013, Father filed an Answer to Petitioner’s

Complaint for Absolute Divorce and a Counter-Complaint for Limited Divorce, or, in the

Alternative, Absolute Divorce, Custody, Child Support, Monetary Award, Attorneys Fees

and Other Relief. Petitioner filed an Answer to Father’s Counter-Complaint and sought an

emergency pendente lite hearing seeking temporary alimony, counsel fees and other relief.

On January 14, 2014, a pendente lite consent agreement reached by the parties was

placed on the record. 12 The agreement stated that: (1) Petitioner would maintain physical

custody of the Child; (2) Father was entitled to visitation with the Child on Tuesdays and

Thursdays after school until 8 p.m., with the Child to be picked up by the Grandparents;

(3) the Child would alternate weekends between Father and Petitioner from Saturday at

9:30 a.m. to Sunday at 7:30 p.m. with transportation to be provided by the Grandparents;

(4) Father and Petitioner were required to submit to random drug testing organized by the

Child’s Best Interest Attorney (“BIA”), the testing must be completed within 24 hours, and

the results had to be provided to the BIA; (5) Father and Petitioner were required to

continue with therapy and the parties agreed to attend therapy at least twice a month; (6)

the Child would continue participating in the Safe Start program;13 (7) Father would

12
On February 28, 2014, the circuit court entered a Consent Pendente Lite Order
that incorporated, but did not merge, the January 14 transcript reflecting the parties’
pendente lite agreement.
13
The Safe Start program is a twelve-week program that helps children in various
stages of separation, divorce, and domestic violence disputes. The program provides
(continued . . .)

13
continue to pay $500 per month in child support to Petitioner; and (8) attorney’s fees would

be deferred until the divorce merits hearing. On January 14, 2014, the BIA required both

Petitioner and Father to submit to a drug test. Father tested negative for all drugs, but

Petitioner tested positive for marijuana. Petitioner tested negative for all drugs on each

subsequent drug test, including a test she took on January 24, 2014 – 10 days after her

positive test.

On February 20, 2014, the Custody Evaluator issued her report, recommending that:

(1) both parties receive a mental health evaluation with a psychiatric consultation regarding

medication; (2) both parties receive a substance abuse assessment, including the possibility

of random drug testing as part of that assessment; (3) Petitioner have primary residential

custody of the Child because she expressed a desire to have custody, she was in therapy,

and because she had accommodations for him; (4) Petitioner have sole legal custody of the

Child; and (5) Father continue to have visitation with the Child, supervised by the

Grandparents. At the custody hearing, the Custody Evaluator acknowledged that Petitioner

told her that she had not used any drugs since the parties separated, but noted that Petitioner

subsequently tested positive for marijuana on her January 14, 2014, drug test. The Custody

Evaluator also acknowledged that Petitioner had not disclosed to her that she had been

abused as a child. The Custody Evaluator stated that in her report she was concerned about

(. . . continued)
education and counseling to help children deal with conflict resolution, fears, safety
planning, peer relations, self-esteem, and guilt reduction. See SAFE START KIDS GROUP
BROCHURE, https://perma.cc/2LYJ-GFUE (last visited: June 23, 2017).

14
Petitioner’s evasive and defensive responses to her questions, and that Petitioner lied to the

Evaluator. The Custody Evaluator also expressed concern that at the time she conducted

her report that she did not see additional signs of attachment between the Child and either

parent.

On April 24, 2014, the Grandparents filed a Motion for Permissive Intervention in

the custody dispute between Petitioner and Father, and attached a copy of their proposed

Complaint for Custody with the circuit court. The Motion stated that “[the Grandparents]

have been an important and regular presence in [the Child’s life.]” In their proposed

Complaint for Custody, the Grandparents further alleged:

6. Although [the Child] has “resided” with his parents, and now pursuant to
this Court’s Pendente Lite Order entered February 28, 2014, with
[Petitioner], the Co-Intervenors have acted in loco parentis for [the Child]
since his birth in 2008.

7. Since [the Child’s] birth, there have been significant periods of time when
[the Grandparents] have cared for [the Child] on a daily basis. At other times,
they have had [the Child] in their care for as many as five overnights per
week.

8. [The Grandparents] have been active participants in [the Child’s] pre-
school and elementary school activities, and have participated in parent-
teacher conferences for [the Child].

9. In addition to extensive hands-on care for [the Child], [the Grandparents]
have frequently paid for [the Child’s] work-related child care and other
activities.

10. [The Grandparents] have also been actively involved in [the Child’s] pre-
school and school activities. Likewise, [the Child’s] Grandparents have been
actively involved in arranging play dates and other activities for [the Child].

11. [The Child’s] Grandmother has often been responsible for taking [the
Child] to the doctor and other medical appointments, and is knowledgeable
about [the Child’s] health.

15
12. For the majority of [the Child’s] life, up until the entry of the Protective
Order, the [Grandparents] cared for [the Child] in order to accommodate the
needs and whims of [Petitioner] and [Father].

13. Over time, the [Grandparents] became aware that [the Child’s] parents
were abusing drugs while [the Child] was in their care. This fact led to an
even greater level of involvement by the [Grandparents] in order to protect
and shield [the Child] from his Parent’s behavior.

14. During the ongoing litigation, a custody evaluation was performed by the
Office of the Court’s Custody Evaluator. As part of that evaluation, the
parties were questioned about their past and ongoing drug use. [Petitioner]
reported to the custody evaluator that she was not using any type of
controlled dangerous substances, as indicated by the Custody Evaluator
during her oral report to the Family Division Master on February 20, 2014
(Docket Entry 98). Both parents were required to submit to drug testing
during [t]he course of the evaluation. [Petitioner’s] test was positive for
marijuana use, contradicting the representation that she was no longer using
drugs.

15. [Petitioner] also repeated[ly] states that her drug use was at the behest of
[Father], implying that on her own, and left to her own devices, she would
not engage in recreational or other illicit consumption of controlled
dangerous substances. The positive drug test during the evaluation, when
[Petitioner] was no longer under the influence and control of [Father]
diminishes the credibility of [Petitioner’s] statement regarding her
recreational drug use.

16. [The Grandparents’] concerns regarding the Parents’ fitness to have
custody of [the Child] is echoed by this Court’s sua sponte decision to order
a psychiatric evaluation of [Father] and [Petitioner] (Docket Entry 115).

17. [The Grandparents] are in good health and are physically and emotionally
capable of caring for [the Child] on a full time basis.

18. Extraordinary circumstances exist in this matter that warrant placing [the
Child] in the residential and legal custody of his paternal Grandparents.

19. [The Child’s] best interests will be advanced by placing him in the care
and custody of his paternal Grandparents.

* * *

16
 The Grandparents’ Complaint requested the circuit court award primary residential

and legal custody to them. On May 21, 2014,14 Petitioner filed a Motion to Strike

Grandparents’ Motion for Permissive Intervention alleging that the Grandparents had no

legal or factual basis for seeking to intervene in the custody action and that the

Grandparents’ motion contained substantial factual errors that did not accurately reflect the

Grandparents role in the Child’s life since Petitioner and Father separated. On June 10,

2014, Father filed an Opposition to Petitioner’s Motion to Strike Grandparents’ Motion for

Permissive Intervention. On July 25, 2014, the circuit court denied Petitioner’s motion and

granted the Grandparents’ Motion for Permissive Intervention. The circuit court

designated the Grandparents as intervening counter-plaintiffs to the custody action. On

July 28, 2014, the Grandparents filed the Complaint for Custody that had been attached to

their motion for permissive intervention. On August 4, 2014, Father filed his Answer to

the Grandparents’ Complaint for Custody and on August 18, 2014, Petitioner filed her

Answer to the Grandparents’ Complaint.

In July 2014, Petitioner’s biological daughter and the Ks moved into the marital

home with Petitioner and the Child. The Ks also brought several dogs and between fifteen

and twenty-five guinea pigs.15 Petitioner and Father both acknowledged that the Child had

14
Father filed a Response to Grandparents’ Motion for Permissive Intervention on
May 2, 2014.
15
M testified at the custody hearing that the Ks lifestyle was unclean and that they
were hoarders, but acknowledged she had never been to the Ks home and that she had only
(continued . . . )

17
a close relationship with Petitioner’s biological daughter, but Father expressed concern

regarding the closeness of the Child to the Ks, whom the Child was not related to.16

On July 14, 2014, pursuant to the pendente lite agreement, the BIA requested

Petitioner take a random drug test, but Petitioner did not comply. The BIA also requested

that Petitioner take another random drug test on August 25, 2014, which Petitioner took on

August 26, 2014. The BIA testified, however, that Petitioner never signed a release to have

her drug test results sent directly to the BIA. Instead, the drug test results were sent to

Petitioner, who then gave them to the BIA.

On September 4, 2014, Petitioner filed an Emergency Motion to Postpone/Continue

Custody Trial Scheduled for September 15, Motion for Order Permitting Discovery, and

Motion to Expedite based on the intervention of the Grandparents in the custody action.

On September 9, 2014, the Grandparents filed a Response in Opposition to Petitioner’s

Emergency Motion to Postpone/Continue Custody Trial arguing that Petitioner had actual

knowledge of the Grandparents’ allegations since April 24, 2014 and, despite the

Grandparents’ offering themselves to be deposed, Petitioner’s counsel failed to schedule

any depositions. On September 10, 2014, Father and the BIA both filed Oppositions to

Petitioner’s Emergency Motion to Postpone/Continue Custody Trial, and on September 11,

(. . . continued)
heard that the Ks were hoarders from Petitioner and Father in prior conversations they had.
M did not provide any testimony regarding the cleanliness of the marital home before or
after the Ks moved in.
16
Father testified that the Child referred to the Ks biological daughter, who is not
related to the Child, as his sister and Father believed that this was confusing for the Child.
18
2014, Petitioner filed a Reply to the Grandparents’ Opposition. The circuit court denied

Petitioner’s Emergency Motion to Postpone/Continue Custody Trial and Motion for Order

Permitting Discovery on September 12, 2014.

Also on September 4, 2014, – the same day that Petitioner filed her Emergency

Motion to Postpone/Continue Custody Trial – an incident involving the Child occurred at

his school. Prior to the incident, the Child had been increasingly disruptive during school.

The Child’s school principal testified that beginning around May 2014, when the Child

was in kindergarten, he refused to leave the kindergarten classroom with the other students

to attend “specials[]”17 on several occasions and would walk around the room, push desks,

become angry and his behavior began to escalate. To address these behavioral concerns,

the school had the Child run errands when the other children left for specials and then he

would meet them in the specials classroom. Additionally, over the summer, the Child was

enrolled in a summer-long camp that had been paid for by Petitioner, but Petitioner testified

that the Child had to be pulled out of camp early due to behavioral problems he was

experiencing, in combination with him wanting to spend more time with the Ks’ children.

Upon returning to school in late August, the Child’s behavior continued to escalate

and he began to leave class, run around the building, and show signs of anger.18 On the

17
“[S]pecials” refers to art, music, and physical education classes.
18
The principal of the school testified that

[The Child] continues to run around. He sometimes say[s] it’s a game, or
he’ll get very close to us and he gets very, he gets angry and he’ll, he’ll
squeeze his fists and his whole body tenses up and he clenches his teeth. And
(continued . . .)
19
afternoon of September 4, 2014, the Child’s behavior escalated to the point where he

kicked the assistant principal and he told the guidance counselor that he was so angry he

wanted to blow up the school, and he was going to make it bad for everybody at the school.

In response, the school determined that because the Child was showing such anger, was

not able to de-escalate, and made a threat against the school that a referral to the Crisis

Center was the appropriate course of action.

The school called Petitioner and asked her to come to the school to discuss the

Child’s behavior. Because the incident occurred on a Thursday near dismissal time, and

because Father had court-ordered visitation with the Child on Thursday evenings at the

Grandparents house, both Petitioner and the Grandmother arrived at the school around the

same time. The principal met with Petitioner alone, at her request, and they discussed how

the Child’s behavior had escalated throughout the day culminating in his becoming violent

and issuing a threat against the school. The principal explained that the guidance counselor

(. . . continued)
he’ll say, I don’t have to listen to you, you’re not the boss of me. I will give
him a direction, and I’ll say, you have a choice, you can return to your class,
or you can walk with me to the office. And he’ll say things like, or there’s a
third choice. And I’ll say no, you don’t have a third choice. These are the two
options. I’m not listening to you, you’re not the boss of me, I don’t have to
listen to you, I’m going to do what I want

So those are some of the experiences. When we’ve had in the counselor’s
office or in my office, again, he’ll show anger. He’ll not want to listen to us.
He has pushed furniture.
* * *

20
had a Crisis Center referral for the Child, and the principal encouraged19 Petitioner to take

the Child to the Crisis Center. The principal also told Petitioner that she needed to have

the Crisis Center complete the referral form and return the form to the school. After

meeting with the principal, Petitioner met with the guidance counselor and received the

Crisis Center referral. The guidance counselor explained to Petitioner that the school

prefers the student to go as quickly as possible to the Crisis Center after they are dismissed

from school.20 Petitioner did not take the Child to the Crisis Center and, instead, allowed

the Grandmother to take the Child with her for visitation. Petitioner did not tell the

Grandmother about the Child’s behavior or the Crisis Center referral she had just received.

Later that afternoon, Father learned of the Crisis Center referral from his attorney

and called the Grandparents to determine whether the Child had been taken in for an

assessment. The Grandmother did not know about the referral, but upon learning about it,

she took the Child to the Crisis Center where she met Father and the Crisis Center evaluated

the Child.21 Neither the Grandmother nor Father informed Petitioner that they had taken

19
The principal acknowledged at the custody hearing that she could not answer
whether she suggested or implied to Petitioner that Petitioner take the Child to the Crisis
Center immediately, but the principal also stated that she told Petitioner “[i]t’s very
important that [the Child] be seen by somebody. He’s making these types of threats to the
school, and to himself. We’re concerned about the safety of [the Child] and others.”
20
Petitioner testified that when she met with the guidance counselor, she was
directed to take the Child to the Crisis Center after he returned from visitation, because the
visitation was court-ordered and the guidance counselor did not want to interrupt what had
already been set up.
21
Petitioner testified at the custody hearing that she made arrangements to take the
Child to the Crisis Center after the Child returned from visitation. The record also indicates
(continued . . .)
21
the Child to be evaluated at the Crisis Center and they did not provide Petitioner with the

completed referral form. While the Child was at the Crisis Center, Petitioner attended the

Child’s back-to-school night, which the Grandfather also attended.

Petitioner testified that the Child did not return to school on Friday, September 5

because she had been referred to Children’s Hospital from the Crisis Center,22 and they had

not been “released from Children’s Hospital until 2:30 a.m. in the morning and the

attending pediatrician and the attending psychologist suggested that [the Child] should be

able to sleep in and have a day of rest at home.”23 A Crisis Center employee refuted some

of Petitioner’s testimony by stating that the Child had only been brought to the Crisis

Center once and it was the Child’s Grandmother who brought him in, with Father joining

them shortly thereafter. The record indicates that Petitioner did take the Child to Children’s

Hospital in Washington, D.C. the night of September 4, 2014 and that they arrived at the

hospital by 9:15 p.m. Petitioner stated that the Child was asked questions upon arriving at

the hospital and then they met with a psychiatrist, a pediatrician and a social worker. The

(. . . continued)
that the principal inferred from her conversation with Petitioner that Petitioner did not feel
she could take the Child to the Crisis Center until after the Child’s visitation with Father
was over. There is no evidence in the record, beyond Petitioner’s own testimony, that she
actually took the Child to the Crisis Center.
22
Petitioner testified that she had taken the Child to the Crisis Center between 8:30
and 8:45 p.m. on September 4, 2014.
23
Petitioner testified at the custody hearing that the principal had asked her to attend
back-to-school night so she allowed the Child to go with the Grandmother for visitation.
Petitioner’s testimony was refuted by the principal who stated she never told Petitioner it
was important for her attend the back-to-school night on September 4, 2014.

22
record also indicates that Petitioner testified that the Child returned to school on Monday,

September 8 and was present from the beginning of school until before lunch, but left due

to an issue with his health.24 The attendance records provided by the school indicated,

however, that the Child did not return to school until Tuesday, September 9.

The custody hearing in the present case was held from September 15 to September

19, 2014 and the circuit court issued its ruling orally on September 19. Petitioner’s

witnesses included Petitioner, the Custody Evaluator, Petitioner’s therapist, the Child’s

school principal, and the school guidance counselor. Father and the Grandparents’

witnesses included Father; both Grandparents; M; the psychologist who worked with

Petitioner, Father, and M in couple’s therapy; the Crisis Center employee who completed

the Child’s assessment; the Grandparents’ neighbor; and a member of the same church the

Grandparents attended.

In addition to the facts discussed, supra, testimony from the custody hearing

revealed that the Grandparents were heavily involved in the Child’s life. Prior to the

separation, the Child spent a substantial amount of time at the Grandparents’ house,

including several times a week and occasional weekends based on the drug and sexual

relations schedule organized by Petitioner, Father, and M. After the separation, the Child

continued to see the Grandparents regularly. The Child also had his own room at the

24
The school guidance counselor testified that on the morning of Monday,
September 8 Petitioner called her to tell her the Child had been aggressive toward her and
she felt it was unsafe for the Child to be at school.

23
Grandparents’ house where he kept his toys and books purchased for him by the

Grandparents.

The Grandmother noted in her testimony that she and the Grandfather were the

caretakers for the Grandfather’s bedridden father and for the first eighteen and a half years

of their marriage they drove to New Jersey every third weekend to help the Grandfather’s

mother care for the Grandfather’s father. The Grandmother also stated they cared for the

Grandfather’s mother in their own home while simultaneously caring for the Child, and

that the Grandfather’s mother suffered from a litany of ailments, including Alzheimer’s,

lymphoma, neuropathy, cataracts, and deafness.

Over the years, the Grandparents also involved the Child in a variety of activities,

including enrolling him in swimming lessons, arranging for the Child to attend Little

Gym,25 and taking him to church on Sundays. The Grandparents also took the Child on

day trips to Brookside Gardens and the county fair, and Petitioner allowed the Child to go

on several vacations with them, including, most recently, to the Outer Banks in the summer

of 2014. The record also reflects that although the Grandparents had previously taken the

Child to see family in Mississippi during the Child’s spring break in 2013, Petitioner

refused to allow the Child to go to Mississippi with them during his spring break in 2014.

The Grandparents would also participate in the Child’s doctor’s appointments, at times

25
The Grandparents arranged for the Child to attend Little Gym once a week from
September 2011 to February 2012. At Little Gym, the Child would do stretching activities,
tumbling, climbing, and balancing.

24
attending with Father and Petitioner, and sometimes taking the Child to the doctor’s

appointments alone.

When the Child was two years old, the Grandparents also gifted the Child with

tuition for one year at the Silver Spring Day School (“SSDS”),26 and provided daycare

during the afternoons while Petitioner and Father were at work. After the Child’s first year

at SSDS, Petitioner found and enrolled the Child in a different program through the

Montgomery County Childcare Association (“MCCA”), with financial contributions made

by the Grandparents. During that next year, the Child split time between SSDS and

MCCA, spending three days a week at MCCA and two days a week at SSDS. The

Grandparents volunteered their time approximately once a month as teaching assistants at

SSDS while the Child was enrolled there, and when the Child began attending MCCA, the

Grandparents continued to volunteer their time, reading and reciting poetry to the

children.27

26
The Silver Spring Country Day School is a yearly preschool program that runs
from 9:30 a.m. in the morning until initially noon, and after the enrollees adjust, to 1 p.m.
27
At the hearing, Petitioner testified that the Child repeatedly came home from the
Grandparents’ home with rashes or nosebleeds, but the Grandparents did not inform
Petitioner of the source of the problem. Petitioner acknowledged that the Child had
historically experienced nosebleeds. Petitioner also testified that after the separation, she
became concerned regarding aspects of the Child’s safety in the care of the Grandparents
and the Grandparents repeated failures to communicate with her regarding the Child.
Petitioner acknowledged, however, that after the separation she also stopped
communicating with the Grandparents regarding the Child’s care and medical needs.

25
 The record from the custody hearing also reflected that Petitioner was a responsive

parent and actively sought to address the Child’s escalating behavior.28 The Child’s school

principal testified that beginning the second week of school, Petitioner asked questions

regarding the Individualized Education Plan (“IEP”) process as a way to address the

Child’s escalating behavior because she felt the Child needed more one-on-one or

individualized attention. Additionally, at the time of the custody hearing, the school was

evaluating how best to help the Child manage his behavior, and had implemented a

behavior contract to begin collecting data on the Child’s conduct.29 In addition to the

28
Father testified that Petitioner could not handle the Child when she was alone with
him and would become frantic if left alone with the Child for long periods of time. Father
also testified that he usually came home to Petitioner and the Child screaming at each other
and if he left, Petitioner would beg for him to hurry back as soon as possible. Father also
stated that Petitioner could not discipline the Child due to her previous childhood trauma,
and she had difficulty changing the Child’s clothes or bathing him.

M testified that she observed Petitioner yelling at the Child over seemingly minor
incidents such as forgetting to throw away the recycling materials. M also stated that
Petitioner and the Child would get frustrated with each other, Petitioner had issues
controlling the Child, the Child refused to listen to her, and that she needed help taking
care of him.
29
The principal explained:

[PRINCIPAL]: So [t]he first step in the process is calling a screening. So
what we do is we come to the table with parent input, teacher input, and
observation from another teacher in the building, and an educational
history. The special educator is involved in that screening meeting, and
at the table we decide the next steps. Whether we decide that we need
educational testing, psychological testing, or anything else.

[PETITIONER’S ATTORNEY]: And will that be for more than just whether
an IEP is appropriate or not?
(continued . . .)

26
evaluative process, Petitioner also requested that the Child be enrolled in the Linkages to

Learning program.30 The principal also testified that Petitioner attended almost every

(. . . continued)
[PRINCIPAL]: That is to determine the next step. So maybe –

[PETITIONER’S ATTORNEY]: Okay

[PRINCIPAL]: – it’s an intervention program. Maybe it’s a behavior
contract, maybe it’s further testing for the special education identification
process. But all of that is talked at, about at that table during the screening
meeting.
* * *
[PRINCIPAL, cont.]: – can I say – we have started the process of a behavior
contract. So with any interventions, that takes about six weeks to collect
that data. So we have started a behavior contract to, to collect data on his
work completion and following, excuse me, following directions and
remaining in his assigned location. So that data collection has just started
at the beginning of last week ….
* * *
[PETITIONER’S ATTORNEY]: And on this entire process you’re talking
about, you’ve had the discussion with [Petitioner]?

[PRINCIPAL]: We’ve discussed about the behavior contract.
* * *
[PETITIONER’S ATTORNEY]: And has [Petitioner] cooperated and
provided all the information and disclosures and signatures that’s
necessary?

[PRINCIPAL]: As far as I know, yes. I asked [the Child’s teacher], are the
contracts going home and coming back, and she said yes. And sometimes
there are notes from [the Child’s teacher], and I think [the Child’s teacher]
said sometimes there are notes from [Petitioner].
* * *
30
The school principal explained that the Linkages to Learning program is provided
to schools that have a high number of students living in poverty and provides wrap around
services for the student and the family. The program has a mental health provider, case
manager, and a coordinator so if the family is displaced the program can support the needs
of the family.
27
school function, she was very responsive when the school contacted her regarding the Child

and would come to the school when requested “[a]t the drop of a hat.”31 Petitioner’s

therapist also testified that approximately fifty percent of Petitioner’s treatment involved

answering Petitioner’s questions about parenting, and that Petitioner sought her advice and

referrals for a qualified therapist to help the Child.32 The record also indicates that

Petitioner paid for the Child’s before and after care at MCCA, totaling $405 per month,

and when the Safe Start program ended she sought to re-enroll the Child in the program

because she felt it was beneficial to the Child.

In their testimony, the Grandparents both acknowledged that Petitioner was

involved in the Child’s care. The Grandfather noted that although he had discussed getting

31
Petitioner’s responsiveness to the school was corroborated by the school guidance
counselor who testified that every time she had a concern with the Child and she called
Petitioner, Petitioner was “very responsive and ready to come up to school whenever need
be.”
32
The record indicates Petitioner and her therapist had located a child psychologist
they felt fit with the Child’s needs, and had planned to take the Child to be examined on
September 11, 2014. The appointment was cancelled because Father did not consent to the
Child being seen by that psychologist. Father stated that he refused to give his consent
because he felt the service recommended by the BIA – the National Family Resiliency
Center (“NFRC”) – was a better fit. The NFRC provides counseling and educational
programs to help children cope, heal, and navigate through divorce and other family
transitions. See NAT’L FAMILY RESILIENCY CENTER, https://perma.cc/4R2J-ECBD (last
visited: June 23, 2017). Father testified that he had repeatedly called the NFRC and had
spoken to the executive director twice. The BIA noted that, although she had provided the
contact information for the NFRC to Petitioner on July 30, 2014, Petitioner did not contact
the NFRC until August 28, 2014. Additionally, although the BIA presented evidence that
an appointment had been scheduled for the Child on September 9, 2014, Petitioner testified
that she never received notice that the appointment had been scheduled and, therefore, did
not take the Child in for the appointment.

28
back-to-school items for the Child with Petitioner, she had “pretty much taken care of most

of those items.” The Grandmother testified that when the Child’s previous part-time

caretaker retired, Petitioner identified another part-time caretaker that the Child stayed with

two days a week. The Grandmother also acknowledged that Petitioner organized all the

Child’s doctor’s appointments and then coordinated the dates with the Grandparents. The

Grandmother also noted that although she and the Grandfather hosted several of the Child’s

birthdays, the parties were planned with Petitioner’s and Father’s input and Petitioner and

Father hosted, planned, paid, and prepared the Child’s fourth birthday party at the marital

home.33

The record also indicates that Petitioner was gainfully employed and worked a flex

schedule, but her hours were mostly Monday through Friday from 9:00 a.m. to 5 p.m.

Petitioner acknowledged that the Child gets off school at 3 p.m. and that when he is in her

care he goes to before- and after-care until she is able to pick him up. Petitioner testified

that she typically dropped the Child off in the morning between 7:45 and 8 a.m and would

pick him up anywhere between 5:30 and 6 p.m. on days that he was in her care. Petitioner

noted that on Tuesdays and Thursdays the Grandparents pick the Child up from school at

3:30 p.m. for court-ordered visitation and they drop him off at Petitioner’s home at 8 p.m.34

Petitioner testified that after the Child’s behavior on September 4th, she had been making

33
Despite the acknowledged role that Petitioner had in the Child’s life, the
Grandmother testified that she did not think that either Petitioner or Father was “prepared
financially, socially, morally, to raise [the Child] in a[n] environment that will help [the
Child] to be the person that he has the potential to be.”
34
The Grandparents also have visitation with the Child every other weekend.
29
it a priority for her to take the Child to school when school starts and pick him up when

school lets out so that he did not have to attend before- or after-care. Petitioner stated she

was able to adjust her schedule due to work-from-home opportunities, but that she did not

know whether she would maintain that schedule, she stated it would depend on the Child’s

needs.

At the conclusion of the custody hearing, the circuit court issued an oral ruling. The

hearing judge found that Father was an unfit parent and concluded that: (1) Father’s

commitment to remain drug free was not clear; (2) the Child could be exposed to the

polyamorous and sadomasochistic activities that Father continued to engage in; and (3) the

Child would continue to be exposed to violent fights between Father and Petitioner.

The hearing judge also found Petitioner was an unfit parent and that extraordinary

circumstances existed sufficient to rule that the Grandparents should receive both physical

and legal custody of the Child. In finding that Petitioner was an unfit parent, the hearing

judge concluded:

With respect to [Petitioner], she lied throughout this case. Now, you can
make an argument, was it [Petitioner] lying or was it Morgan or was it him –
I don’t know. But it was certainly the woman on the stand and it was certainly
the woman that had all these other incidents before. And she lied about drug
usage and testing. She said she was forced to have sex with [M]. That’s been
disproved. She lied about her different identities. That’s been disproved.
She’s been caught in all these lies. She lied about taking her son to school on
September 8th. And these are so many things that she’d have to – if she was
intelligent enough – think well, I’m going to get caught on those. I either took
the child to school on September 8th or I didn’t. And then she said, well, I
took him there for part time.

And somebody that continuously lies under oath and lies to the [BIA] and
doesn’t do all the things that the [BIA] wants her to do – once she’s under
the microscope, you’d say, wow, how could she ever be trusted at a later

30
date? And she’s under oath when she’s saying these things. She was forced
to take these drugs – I don’t find that at all. I find she clearly took the drugs
voluntarily. In fact, her husband was sending her some research on some of
these drugs. It seems like that was one of their big hobbies, finding new drugs
and new ways to trip or get high or hallucinate – all against the law, by the
way. All detrimental to the marriage, not to even mention what it does to
raising a child.

And whether or not she has [DID] or not, I don’t know. But I agree with
[Father’s attorney] that if she has it, it’s a big problem. If she doesn’t have it,
it’s a big problem. Because she’s acting as if she does. And she’s
impersonating several different people.

And one that was never rebutted – that Morgan might hurt the child. She
talked about visions of Morgan cutting the baby out of her stomach. And then
we hear these things that haven’t been rebutted with respect to that she
couldn’t see her son naked or in the shower, which is about as natural as
possible for a mom with a little guy, bathing him – even before they’re even
ready for showers. Weird, odd, bizarre, troubling – yes, all of the above.

And you throw in this other family living in her home? How thoughtful of
that is her son when she’s got also her own natural daughter and adoptive
mother there as well and then the little boy, [the Child], is calling both of
them his sisters. And then you’ve got the other two living in there. And then
you throw in all the animals. It’s about as chaotic as possible. And I know
full well why [Petitioner] didn’t want the [BIA], to see the inside of that
house. She probably would have got sick if she had walked in there. And
that’s where you’re raising a child and two girls and a little boy?

And there again, you would think – all right, here I am a mom or a dad. I’ve
got the court watching me. I’ve got the [BIA] – I want to do everything I
possibly can to at least fool people, even if I’m not sincere. But she did just
the opposite. It was business as usual with her. In fact, she made it worse.
Her selfishness was then passed on to [the Child] even more when he
couldn’t take the trip to Mississippi with his grandparents. And the
grandparents – she had no axe to grind with them.

And the incident on September 4 – well, there’s a total manifestation of how
much trouble this guy is in. Because it’s not typical. He’s in major, major
trouble when you’re threatening to blow up a school and punch a vice
principal at the age of six in the stomach? That’s unheard of. Those are the
kids that we send here to the Finan Center to give them intense examination
when they’re in the juvenile delinquent system. These are kids that probably

31
have little chance of making it, because they don’t have a family to go back
to for the most part.

And yes, on that day any mother worth her salt would tell first of all the
grandparents and do everything she could to address the problem. My son
did what? We’ve got to address this right now. But hand him off to the
grandmother and not say anything? That’s just bizarre. What kind of love
does she have for her son? What kind of interest does she have for the son?
It’s like my shift’s over, somebody else worry about it. I’ll punch out. I’m at
the factory. I didn’t finish what I was supposed to do today, but the next
worker can take over. Grandma can go take over. That’s the attitude she
displayed.

Then you add – and I don’t believe her also that she’s changed the work
schedule that she has, because I don’t believe anything else she said. So that
child is dropped off at 7:45 to 8:00 every morning and picked up 5:30 to 6:00.
If it is truly from 8:00 to 6:00, that’s ten hours a day for a kid that’s in major
crisis. I would like to think a parent would quit their job if they had to, to
deal with that problem with a child. It’s no different than if that child was in
the hospital with two broken arms, two broken legs, or in a coma. You have
to make adjustments.

I don’t see any tendency on either one of them – but we’re talking about the
mother – to make the adjustment that that child needs. That child is in the
mental emergency room or should be right now. And that’s the way she
should be addressing it. And most mothers would try to move heaven and
hell to help their child, to do everything they possibly could. But not say
anything? Now, I assume she went to Children’s [Hospital]. I don’t know
whether she went out to the county for that or not. But in any event, I don’t
think there was significant follow[-u]p. And anything she did do in the way
of getting some counseling or looking into anything else – I think she was
getting good instruction from her attorney, but obviously not following other
things. I think if left to her, she wouldn’t do anything. Just drop him off at
school, he runs around in school, he flips over wastepaper baskets, so what?

And another thing – she makes excuses for everything. Everybody – it was
somebody else’s fault for everything in her testimony. Never took the blame
for anything. And I heard from the grandparents all the things that I would
expect to hear from mom. I didn’t hear how she said, you know, I just love
to put him to bed at night. I like to tuck him in. I like to read him a story. We
take little walks together. I like to go through colors with him and numbers
with him. He loves to wear this particular sweatshirt. You didn’t hear any of
that. I didn’t see any really love or total attachment. I mean, this is her flesh

32
 and blood, her own son. Most mothers would give up their lives for their
children in a tragedy. A child fell into a river, they’d dive in. I think in this
case, I don’t know what she’d do. She might leisurely walk over and make a
call. I don’t know. But what I’ve seen from the time this child was born, she’s
not even acting in the way a babysitter would act. Because if she were the
babysitter and she went to school on the fourth and the teacher told her what
happened or daycare provider, she’d be calling everybody she possibly
could. She’d be calling the mother, she’d be calling the father, she’d be
calling the grandparents. Did you hear – let me tell you what the principal
said. Schools can’t make you do anything now, because that’s the way the
system is. But certainly when they send a kid to the [C]risis [C]enter, it’s
major. It’s major.

So we’ve got a mother not only taking drugs – and I find that she still takes
them or she’s still ready to take them. And she has no appreciation what
they’ve done. I don’t find any evidence that she feels terrible about doing all
these sex things with her child in the house, because she blames it on her
husband. She blames [M] on her husband. She blames the drugs on her
husband. She blames the sex on her husband. She says this is a – everybody
is making up these personalities. When [the couple’s therapist] testified, who
did everything she could to help [Petitioner] – she even said that she had
personalities.

So I find that the mother is an unfit person to have custody of this little boy.
There’s no ifs, ands or buts. It’s not even a close call. It is overwhelmingly
strong and I don’t even know if I mentioned everything. But I adopt
everything that [Petitioner’s] attorney, the grandparents[’] attorney, and the
[BIA] have said as well. And they all take that position, and the [BIA], who
is independent here, makes that finding.

And I truly thin[k] [the Grandparents] are independent, too in finding that the
parents are unfit. I value their opinion because they’re older, they’re wiser,
they’re stable. And I think they really if anything would lean towards their
son or helping him out. But I think they were extremely objective because I
think their total focus is on their grandson.

* * *

In determining that exceptional circumstances also existed in this case, the hearing

judge found that:

33
 So I’m also going to find – because this case cries out for it as well – I know
it’s an or, but the Court of Appeals and [Court of] Special Appeals, I don’t
know, one day they ma[y] wake up and say it should be and. I find that there’s
extraordinary circumstances that exist here which are significantly
detrimental to the child remaining in the custody of the mother and/or the
father. And I’ve given all those reasons – the drugs, the sex, the craziness in
the house, the different relationships, the lack of interest in the mother, the
mother lying – all of those things are factors for both.

So once I find that – oh also, factors laid out by the Court in [Ross v. Hoffman,
280 Md. 172, 372 A.2d 582 (1977)], exceptional circumstances, length of
time the child has been away from the biological parents – well, the child is
away whenever they were going to do some tripping. In fact, it was such a
big deal, she wrote it on her calendar. They spent more time it seems to me
on their sex and drugs and writing down stuff and going to [the couple’s
therapist] than they did on this little guy, [the Child].

So I’ve considered that. I’ve also considered the age of the child when the
care was assumed by the third party, which was from the time of birth,
basically. At least after mom went back to work after the first year. The
possible emotional effect on the child in a change of custody – the Court has
considered that. The period of time which elapsed before the parents sought
to reclaim the child – the Court has considered that. The nature and strength
of the ties between the child and the third party custodian – the Court has
considered that. And I find they’re extremely strong with the grandparents.

The intensity and genuineness of the parents’ desire to have the child – I
don’t find that there’s intensity and genuineness on the part of [Petitioner]. I
really don’t. It’s sad because she’s the mother. The stability and certainty as
the child’s future in the custody of the parents. Well, I think it’s clear. He
would continue with instability and he would certainly fail. He’d be in crisis.
He’d be out of that public school system probably for good.

Let’s look to the grandparents. So I find the exceptional circumstances exist.

* * *

Upon determining that exceptional circumstances existed in this case, the hearing

judge next considered the fitness of the Grandparents to have custody. The hearing judge

found that:

34
With the grandparents, there’s total stability. They’ve proven it over their life
and they’ve proven it with their testimony. I find them to be sincere, genuine,
rock-solid people, the kind of people that you want raising children.

I think they were outstanding grandparents, but now they’re going to be
asked to actually serve as parents. But it won’t be the first time. Because the
parents have relied on them to do a lot of the parenting things throughout this
little boy’s life. A lot of financial things … And the parents were just content
to let them do that. I don’t see any real pride there. You’d think at some point
you’d say, dad and mom, you’ve done enough. Or we need to do more.

You’ve got the grandfather – and I find the grandparents will give this little
boy the guidance he needs which he’s not getting from his mother. They’ll
give him the time that he needs. They have the time now. And he needs time.
Not only does he need time, he needs quiet time, which he won’t get with his
mother. Anything but – it’s chaotic, it’s bizarre, I’m sure it’s loud. And he’s
just – as I said, he just happens to be there along with everybody else.

His problems would be addressed with his grandparents, which are severe
problems. And we’ve already addressed how they’ve manifested themselves
to date.

They’ll also have – the parents will not have to use before and after care.
That’s a significant part. The more time this child spends with parents or
grandparents and the less time he spends with other people watching him, the
better. You can have the best before and after care program in the United
States. It’s not the same as a mom or a dad or a grandparent who actually is
really attached to the children. I don’t see any evidence that mom is either
able to or willing to completely change her schedule. She said she changed
it last week. I asked her what she’s going to do in the future. She doesn’t
know.

Now financially, she may not be able to do that. But that’s still a factor.
That’s ten hours a day. The[n] you add the time that when she gets home,
she’s got to fix dinner – if there [is] such a thing as a sit down dinner at that
house – and feed the dogs, clean up, and change her clothes – maybe do some
things on her own. Those all take time away from this little boy. He’s
neglected. There’s no doubt about it.

The grandparents have also added the religion to his life, which is not a must,
but it’s another piece of structure in his life which he likes. And they’re
raising him and he’ll learn good values and good morals in a Christian
church. I’m not saying it’s a must. It’s not a necessary. It’s not a major factor.

35
But it shows another time that they spend with him and they do that with him
every Sunday. And he likes it and I find that can only be helpful to him.

The [grand]parents don’t smoke dope, the [grand]parents don’t have all these
crazy things. They have time for this little guy. They’re well educated people.
They know what it takes to be a productive, happy, respectful young man.
They’re dealing with some really bizarre things right now with this little boy
acting up when he gets up. I suspect they know that there’s probably more of
that down the road. I think they have the wherewithal to deal with it, either
professionally or with themselves. They know what values are. They know
what morals are. They know what goals are. They know how important it is
to sit down with him and not just say do homework, but to teach him about
things. The grandfather has nice little things that he does with him. He likes
to build things. The grandfather is a pretty talented guy with an engineering
background. Those are all wonderful things for this little boy to learn.

The [grand]mother is a former math teacher – I thought the way she handled
that situation with [the Child] was exactly how a mother should handle it or
a well-intentioned and a hands-on grandmother. I think they will give him –
they will have the patience and understanding to deal with him as opposed to
bringing in two grandparents from Mississippi that never met him and say,
well, they’re the grandparents, they can take care of him. They know him
better than the mother does. They know this little boy better than the father
does. And they’re honest. And they’re willing to keep the parents in this little
boy’s life. They know it is important – at least until they prove that their
parental rights should be terminated – and we’re not there yet – and this case
should have been a CINA case from the start. But unless their parental rights
get terminated they’ll keep the mom and dad in their lives and do the best
they can.

They are, I find, very fit and proper people to have custody. We’ve got to
look for purposes of the three judge panel, tick off some factors on
[Montgomery County Dep’t of Soc. Servs. v. Sanders, 38 Md. App. 406, 381
A.2d 1154 (1977)], but the fitness – certainly they’re both very fit to have
custody. Now, their age is up there. It is. But there’s no indication that they
have any illness and they don’t have any illnesses to deal with.

One thing I was really impressed with, the [grand]mother said, we’re
caretakers, and they talked about the relative up in New Jersey, how they
made that commitment every second week or third week of the month.

* * *

36
What I’m saying is these people will do what it takes to do for this little boy.
And if the little boy does fail, it won’t be because he’s with his grandparents.

The character reputation of the grandparents I think is top drawer. The desire
of the grandparents to have custody is clearly there. I find that they really
want to have custody by default because they know that’s his only hope. The
preference of the child – I don’t consider that at age six. Opportunities for
the future – he’s got unlimited opportunities with his grandparents,
financially, educationally, medically, emotionally – all of the things that a
child needs to be successful, to be happy, to be healthy, to have friends –
they’ll make sure he gets on the right teams or clubs or activities. They’ll
find his interests. They’ll expose him to a lot of different things that little
boys need to be exposed to. And they’ll make the right selection. They’ll give
him the right guidance. They’ll do all the things that a good mom and good
dad should do.

The age and health of the child – well, fortunately, he’s not 16. He’s not
uncontrollable physically. He’s still easy to manipulate and you can use a lot
of psychological warfare on him, even though he’s got some problems. He’s
still a little boy and you can trick him, which is a good thing.

They’ll teach him respect for others, they’ll teach him how to act at school
and deal with other people, all the things that they know, because they know
from experience. Unfortunately, the mother and father don’t have that now.
And it might be the drugs. Maybe they will. I think dad wants to. Who knows
with mom, because she lied so much, who knows?

The residence of the [grand]parents – they’ve got a big house, nice house,
more than [the Child] needs. I mean, a little boy, you can put him on the floor
in the den. But he’s got his own little room, he has his own little things. He
can build things, he has a nice quiet place to do his homework. Where in the
lord’s name does he do his homework [at the marital home]? Is there any
homework? I don’t know. In the first grade, you don’t get much, but you will
later on, and there is some.

So under [Sanders] they fit all the categories. As I said, he’s six. And maybe
mom and dad later on will improve. Dad has made some great steps in it.
And I keep coming back to – hey, [Petitioner’s] kind of blasé about the whole
situation. It’s really interesting. And she turned on the very people that have
been such a rock solid financial benefit and such a great resource for their
son. I mean, they didn’t ask for money. They did all of these things because
they love their little grandson. And the thanks she gives them is well, I think,

37
 you know, well they don’t use the right car seat. I mean, come on. Let’s find
something we can attribute blame to,

So if she had custody – [Petitioner] – I think the grandparents would be out
of the picture. There’s no doubt about it. And I think there would be a fight
over visitation with the father. And that would be one of the worst things that
could happen to this little guy. He needs those people. Thank [G]od for
grandparents in this case. And believe me, I lean heavily towards parents. I
know the grandparents do, too. In the order of things, that’s who should be
raising these guys. But fortunately, you folks are there.

* * *
The hearing judge subsequently awarded physical custody of the Child to the

Grandparents. The hearing judge granted visitation to Petitioner on every other weekend

from Saturday at 9:00 a.m. to Sunday at 7:00 p.m., with no overnights, but every other

Sunday of the visitation weekends, Petitioner’s visitation hours were modified to 12:30

p.m. to 7:00 p.m. so the Child could continue to attend church services with his

Grandparents. The hearing judge also stated he would not order drug counseling for either

Father or Petitioner, finding that if the parties “want to keep smoking dope and taking

hallucinatory drugs and having as many sex partners as you can – well, great. That’s your

life. But we’re not going to let it impact on this little guy. If you want to break the law, you

break the law.”

On September 30, 2014, the hearing judge entered an interim order granting sole

legal and physical custody of the Child to the Grandparents, with both parents retaining the

right to visitation. The interim order also required Father to pay child support in the amount

of $500 per month directly to the Grandparents, and stated a hearing would be set before a

magistrate to determine Petitioner’s child support obligations. On October 7, 2014, the

Grandparents filed an Emergency Motion to Modify and Limit Petitioner’s Access to the

38
Child, requesting the circuit court modify the Interim Order to grant the Grandparents

discretion in determining the frequency and duration of Petitioner’s access to the Child.

The circuit court held an emergency hearing regarding the Grandparents’ Motion on

October 17, 2014, and on October 28, 2014 issued a Second Interim Order granting the

Grandparents’ Emergency Motion and modified Petitioner’s rights to visitation.

On December 16, 2014, the circuit court entered a Final Order in the custody case that,

inter alia, outlined the visitation schedule for the Child during holidays and summer break,

and apportioned the payment owed to the BIA between Petitioner and Father. The Order

also stated that “this Court has considered the issues adjudicated, the claims brought, the

need to defend against those claims, and the financial status of the parties.” Also on

December 16, 2014, a notice was sent to the parties scheduling a hearing regarding child

support for March 11, 2014.

II. Child Support Proceedings

On December 30, 2014, the Grandparents filed a Motion for Child Support in the

circuit court seeking child support from both Petitioner and Father to cover the care of the

Child, including “extraordinary medical expenses” that ranged between $1,400 and $2,000

per month for the Child’s psychiatric care. On February 26, 2015, Petitioner filed a

Response in Opposition to the Grandparents’ Motion for Child Support. A hearing was

held on March 11, 2015, where a magistrate considered whether child support should be

paid by Petitioner and Father to the Grandparents for the care of the Child.35 On March

35
Father filed an Answer to the Grandparents’ Motion for Child Support on the
morning of the hearing – March 11, 2015.
39
24, 2015, the magistrate issued his findings of fact and conclusions of law regarding child

support. The magistrate acknowledged that an order titled “Final Order” had been entered

by the trial court on December 16, 2014, but concluded that, because the order did not

address child support, it could not be a final disposition of the case pursuant to both

Maryland Rule 2-60236 and our decision in Rohrbeck v. Rohrbeck, 318 Md. 28, 566 A.2d

767 (1989).37

36
Maryland Rule 2-602 states:

(a) Generally. Except as provided in section (b) of this Rule, an order or
other form of decision, however designated, that adjudicates fewer than
all of the claims in an action (whether raised by original claim,
counterclaim, cross-claim, or third-party claim), or that adjudicates less
than an entire claim, or that adjudicates the rights and liabilities of fewer
than all the parties to the action:
(1) is not a final judgment;
(2) does not terminate the action as to any of the claims or any of the
parties; and
(3) is subject to revision at any time before the entry of a judgment that
adjudicates all of the claims by and against all of the parties.

(b) When Allowed. If the court expressly determines in a written order that
there is no just reason for delay, it may direct in the order the entry of a
final judgment:
(1) as to one or more but fewer than all of the claims or parties; or
(2) pursuant to [Maryland] Rule 2-501(f)(3), for some but less than all of
the amount requested in a claim seeking money relief only.
37
In Rohrbeck, we stated that for a ruling to “constitute a final judgment, it must
contain the following three attributes: (1) it must be intended by the court as an unqualified
final disposition of the matter in controversy[;] (2) unless the court properly acts pursuant
to Maryland Rule 2-602(b)[,] it must adjudicate or complete the adjudication of all claims
against all parties[;] and (3) the clerk must make a proper record of it in accordance with
[Maryland] Rule 2-601.” Rohrbeck, 318 Md. at 41, 566 A.2d at 773. The magistrate
concluded that because the Final Order did not adjudicate the issue of child support
between the parties it could not be considered a final judgment.
40
 The magistrate also rendered the following findings of fact and conclusions of law

in recommending that both Petitioner and Father pay child support to the Grandparents:

So, now having decided that child support to be paid by [Petitioner and
Father] were properly before me on March 11th, the questions to be answered
are as follows. What is the appropriate amount of child support? Two, how
is that amount of child support to be determined? And three, when do the
child support payments begin? Now, with regard to determining what the
appropriate amount of child support is, I first just want to note that under the
law, and we all know this, each parent has a legal obligation to financially
support their children. Section 5-203 of the Family Law Article specifically
provides that the parents of a minor child are jointly and sever[ally]
responsible for the child’s support and care, nurture, welfare, and education.
Then, in section 10-203 of the Family Law Article, it states a parent may not
willfully fail to provide for the support of his or her minor child.

And, these two statutory provisions that I’ve noted are supported by the Court
of Appeals in the [Drummond v. State to Use of Drummond, 350 Md. 502,
714 A.2d 163 (1998)] case … [where] the Court of Appeals stated, the duty
of parents to provide for the maintenance of their children is a principle of
natural law, an obligation laid on them, not only by nature itself, but by their
own proper act in bringing them into the world, by begetting them. Therefore,
they have entered into a voluntary obligation to endeavor as far as in them
lies that the life which they have bestowed shall be supported and preserved.
So, there’s no question that [Petitioner and Father] are obligated under the
law to financially support [the Child].

Now, with regard to the amount of child support, the question in my mind
was how was child support to be determined when the child has been placed
in the custody of a third party and not with one of the biological parents?
First, I note that Family Law Article section 12-202, which all the attorneys
are familiar with, which is the Maryland Child Support Guidelines, provides
that quote in any proceeding to establish or modify child support, the court
shall use the Child Support Guidelines. I could not find any case law, and
none was presented to me, establishing whether the guidelines must be used
in a case with facts such as the facts which are presented to me here.
However, there is case law which established that when a child is placed in
the custody of a government agency, the parents are still obligated to pay
child support, and the amount to be paid is to be established using the
Maryland Child Support Guidelines.

41
 In a 1993 case, the Court of Special Appeals in [In Re Joshua W., 94 Md.
App. 486, 617 A.2d 1154 (1993)] noted that the General Assembly intended
that the Child Support Guidelines be used in all child support cases, including
those like the one in [Joshua] involving government-financed child care
when the child has not been placed in the custody of either of the biological
parents. The Court of Special Appeals in [Joshua] noted that the Child
Support Guidelines were most often used when one biological parent or the
other had physical custody. Dispute [sic] this emphasis on custodial and non-
custodial parents, and sole and shared physical custody in the guidelines,
there is nothing in the statute or its legislative history to suggest that the
General Assembly intended that Child Support Guidelines only be applied to
the usual child support cases. The Court of Special Appeals concluded that
the guidelines were to be used in all cases when child support was at issue.
And then, just recently, I guess nine years ago now, the Court of Special
Appeals decision was followed by the Court of Appeals in [In re Katherine
C., 390 Md. 554, 890 A.2d 295 (2006)]. So, I’m required to use the
guidelines.

The next question is when does the amount of child support begin for the
parents? Now, with regard to modification cases, it’s clear under Family Law
Article 12-104,[38] and basically it states that it has been shown that there has
been a modification of circumstances that are material. And then, the statute
clearly states that the amount of the new child support can only begin from
the date of filing. With regard to an initial filing or initial request for child
support, as would be the case with regard to [Petitioner], the [Grandparents]
argued that the court has the authority to make a child support award prior to
the date of the first pleading. And again, the first pleading in this case seeking
child support was December the 30th, 2014.

38
Family Law Article §12-104 states:

Modification of child support

(a) The court may modify a child support award subsequent to the filing of a
motion for modification and upon a showing of a material change of
circumstance.

Modification not retroactive

(b) The court may not retroactively modify a child support award prior to the
date of the filing of the motion for modification.
42
 I was not able to find any case law or statutory authority to support the
[Grandparents’] position with regard to starting child support prior to the date
of the filing requesting the child support. I note that under [Family Law
Article] section 12-101(a)(3), it states that for any other pleading that
requests child support, the court may award child support for a period from
the filing of the pleading that requests child support. I could not find any
cases directly on point with this, but there is statements made in appellate
decisions, such as in [Krikstan v. Krikstan, 90 Md. App. 462, 601 A.2d 1127
(1992)], says it is within the discretion of the chancellor to determine whether
to make the award retroactive to the time of filing. And, I think that statement
suggests that we are not to go prior to the date of the filing. And, I think the
language in [Family Law §]12-101(a)(3) also supports that child support may
be awarded from the filing of the pleading.

Then, there was an argument made by counsel that if it was determined that
the guidelines would be the appropriate manner in which to determine the
amount of child support to be paid by the parties, that I deviate from those
guidelines. The attorneys know, this is well-stated or well-known, that the
amount of child support called for under the guidelines is presumed to be
correct. The presumption can be rebutted by evidence that the application of
the guidelines would be unjust or inappropriate in a particular case. And then,
if I am to deviate from the guidelines, I have to state what the amount called
for under the guidelines would be, and then also how the deviation benefits
the children.

So, those are the conclusions of law that I’m finding in this case.

* * *

The magistrate then assessed Petitioner’s and Father’s income and determined

Petitioner’s annual income from her employment at Direct Energy was $37,605.24 and her

actual monthly income was $3,134. The magistrate determined that Father was

unemployed, having previously worked at Geotech until he was laid off, and he received

$1,820 per month in unemployment benefits. The magistrate took judicial notice that

Father was under a separate child support order in the amount of $475 per month for

another child. The magistrate also acknowledged that the Child had been under the care of

43
both a psychiatrist and psychologist since 2014, and had been diagnosed with Attention

Deficit Hyperactivity Disorder (“ADHD”),39 an anxiety disorder, and operational defiant

disorder (“ODD”).40 The magistrate concluded – based on the psychiatrist’s testimony at

39
The DSM-V states that the essential feature of ADHD is “a persistent pattern of
inattention and/or hyperactivity-impulsivity that interferes with functioning or
development.” Am. Psychiatric Ass’n, DIAGNOSTIC AND STATISTICAL MANUAL OF
MENTAL DISORDERS (5th Edition 2013), https://perma.cc/J2MF-T7CC (last accessed: June
30, 2017). The DSM-V explains that:

Inattention manifests behaviorally in ADHD as wandering off task, lacking
persistence, having difficulty sustaining focus, and being disorganized and is
not due to defiance or lack of comprehension. Hyperactivity refers to
excessive motor activity (such as a child running about) when it is not
appropriate, or excessive fidgeting, tapping, or talkativeness …. Impulsivity
refers to hasty actions that occur in the moment without forethought and that
have high potential for harm to the individual (e.g., darting into the street
without looking). Impulsivity may reflect a desire for immediate rewards or
an inability to delay gratification. Impulsive behaviors may manifest as social
intrusiveness (e.g., interrupting others excessively) and/or as making
important decisions without consideration of long-term consequences (e.g.,
taking a job without adequate information).
* * *
Id.
40
The DSM-V states that the essential feature of ODD is “a frequent and persistent
pattern of angry/irritable mood, argumentative/defiant behavior, or vindictiveness[.]” Am.
Psychiatric Ass’n, DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (5th
Edition 2013), https://perma.cc/HET6-RJ57 (last accessed: June 30, 2017). The DSM-V
also states that:

The symptoms of [ODD] may be confined to only one setting, and this is
most frequently the home. Individuals who show enough symptoms to meet
the diagnostic threshold, even if it is only at home, may be significantly
impaired in their social functioning. However, in more severe cases, the
symptoms of the disorder are present in multiple settings. Given that the
pervasiveness of symptoms is an indicator of the severity of the disorder, it
is critical that the individual’s behavior be assessed across multiple settings
and relationships.
(continued . . .)
44
the March 11 hearing – that the Child would need long-term psychiatric and

psychotherapeutic care. The magistrate acknowledged that the Child was covered, at no

additional cost, under the Grandparents family health insurance plan, but that the

Grandparents paid out-of-pocket for the Child to see both the psychiatrist and psychologist

outside of the Grandparents’ insurance plan in the amount of $1,312.50 per month.

Based on these factual findings, the magistrate concluded that:

I believe that the Maryland Guidelines are required to be used in this case. I
believe that the child support to be ordered can only be from the date of filing
for the child support by the [Grandparents] on December the 30th, 2014, with
regard to the amount to be paid by [Petitioner] and with regard to the
modification of the amount previously ordered to be paid by [Father]. Using
the guidelines and the facts that I found based upon the evidence, the amount

(. . . continued)
* * *
There are several key considerations for determining if the behaviors are
symptomatic of [ODD]. First, the diagnostic threshold of four or more
symptoms within the preceding 6 months must be met. Second, the
persistence and frequency of the symptoms should exceed what is normative
for an individual’s age, gender, and culture. For example, it is not unusual
for preschool children to show temper tantrums on a weekly basis. Temper
outbursts for a preschool child would be considered a symptom of [ODD]
only if they occurred on most days for the preceding 6 months, if they
occurred with at least three other symptoms of the disorder, and if the temper
outbursts contributed to the significant impairment associated with the
disorder (e.g., led to destruction of property during outbursts, resulted in the
child being asked to leave a preschool).

The symptoms of the disorder often are part of a pattern of problematic
interactions with others. Furthermore, individuals with this disorder typically
do not regard themselves as angry, oppositional, or defiant. Instead, they
often justify their behavior as a response to unreasonable demands or
circumstances. Thus, it can be difficult to disentangle the relative
contribution of the individual with the disorder to the problematic
interactions he or she experiences.
* * *
Id.
45
 of child support called for under the guidelines would be $1,467 per month
by [Petitioner], and $629 per month by [Father]. I’m handing out now to the
attorneys the child support worksheet which I used.

Now, I considered a deviation from the guidelines. The only evidence that
the guidelines amount would be unjust or inappropriate is that the guidelines
call for a significant amount from both [Petitioner’s] monthly adjusted actual
income and [Father’s] monthly adjusted actual income. The amount called
for under the guidelines would be 47 percent of [Petitioner and Father’s]
monthly adjusted income, and that is significant. But I note that to deviate
from the guidelines would mean that the cost for providing for [the Child]
would fall to the [Grandparents] who have no legal obligation to financially
support [the Child], and I will not do this.

* * *

The magistrate subsequently entered his recommendation that Petitioner be

obligated to pay child support to the Grandparents in the amount of $1,467 per month, with

arrearages in the amount of $4,401. The magistrate recommended the arrearages be repaid

at a rate of $25 per month until paid in full. In regard to Father, the magistrate

recommended that the interim order be modified to reflect that Father pay child support to

the Grandparents in the amount of $629 per month, with arrearages in the amount of

$3,387. Similarly as to Petitioner, the magistrate recommended the arrearages be repaid at

a rate of $25 per month until repaid in full. The magistrate also recommended that Father

provide the Grandparents with information about his attempts to locate full-time

employment every 60 days, commencing on the 60th day from the entry of the magistrate’s

order until he finds full-time employment.

On April 4, 2015, Petitioner filed Exceptions to the Magistrate’s Recommendations

Concerning Findings of Fact and Conclusions of Law challenging: (1) the magistrate’s

finding that the Final Order entered on December 16, 2014 was not a final judgment and

46
considering the merits of the Grandparents’ Motion for Child Support; (2) the magistrate’s

finding of “extraordinary medical expenses” in light of the fact the Grandparents had an

insurance plan that covered the psychological and psychiatric care for the Child and no

explanation was provided for why the Child was seeing a psychiatrist and psychologist that

were not covered under the Grandparents insurance plan; (3) the magistrate’s determination

that the Grandparents were similarly situated to a guardian appointed by a government

agency and that they were under no legal obligation to support the Child; and (4) the

magistrate’s determination that Petitioner should pay $1,467 per month or 47 percent of

her monthly income in excess of federal and state mandates. On May 26, 2015, the circuit

court denied Petitioner’s Exceptions and granted the Grandparents’ Motion for Child

Support in accordance with the magistrate’s recommendations.

On June 19, 2015, Petitioner filed a timely Notice of Appeal to the Court of Special

Appeals. On December 7, 2016, in a reported opinion, the Court of Special Appeals held,

inter alia, that: (1) the circuit court did not abuse its discretion when it granted the

Grandparents’ motion for permissive intervention; (2) the circuit court did not abuse its

discretion in finding Petitioner was unfit; (3) the circuit court did not abuse its discretion

when it found that exceptional circumstances existed in the case at bar; and (4) the circuit

court did not abuse its discretion in awarding child support to the Grandparents. 41 See

Burak v. Burak, et al., 231 Md. App. 242, 150 A.3d 360 (2016).

41
The Court of Special Appeals also considered the following issues in its opinion:
(1) whether the circuit court abused its discretion by soliciting expert testimony during a
hearing in an “unorthodox manner;” (2) whether the circuit court erred in permitting the
(continued . . . )
47
 On March 3, 2017, we granted Petitioner’s petition for writ of certiorari to address

the following questions:

(1) May grandparents intervene in a custody dispute between parents to seek
custody of their grandchild before there has been an adjudication of the
unfitness of the custodial parents?

(2) May the “exceptional circumstances” test set forth by this Court in Ross
v. Hoffman, 280 Md. 172, [372 A.2d 582] (1977), be used to take custody
away from a biological parent with whom the child has lived for his entire
life?

(3) May a parent be required to pay child support to grandparents and, if so,
may child support be awarded without consideration of the financial
resources of the grandparents?

STANDARD OF REVIEW

We have held that, regardless of whether a party seeks to intervene as of right or

permissively, the decision to allow a party to intervene “is dependent upon the individual

circumstances of each case and rests in the sound discretion of the trial court, which, unless

abused, will not be disturbed on appellate review.” Md. Radiological Soc., Inc. v. Health

Services Cost Review Comm’n, 285 Md 383, 388, 402 A.2d 907, 910 (1979) (quoting

NAACP v. New York, 413 U.S. 345, 365-66, 93 S. Ct. 2591, [2606-03] (1973)).

In In re Yve S., 373 Md. 551, 819 A.2d 1030 (2003), we established that there are

three distinct aspects to our review in child custody disputes. We held that

When the appellate court scrutinizes factual findings, the clearly erroneous
standard of [Maryland Rule 8-131(a)] applies. [Second], if it appears that the

(. . . continued)
Grandparents to intervene in the parties’ divorce property distribution hearing; and (3)
whether the circuit court erred in awarding Father with “contributions made towards
maintenance of the family home.” Because those issues were not raised on appeal before
this Court we do not address the lower Court’s holdings regarding those issues.
48
 [hearing court] erred as to matters of law, further proceedings in the trial
court will ordinarily be required unless the error is determined to be harmless.
Finally, when the appellate court views the ultimate conclusion of the
[hearing court] founded upon sound legal principles and based upon factual
findings that are not clearly erroneous, the [hearing court’s] decision should
be disturbed only if there has been a clear abuse of discretion.

Id. at 586, 819 A.2d at 1051 (citations omitted). We also concluded that

[I]t is within the sound discretion of the [hearing court] to award custody
according to the exigencies of each case, and as our decisions indicate, a
reviewing court may interfere with such a determination only on a clear
showing of abuse of that discretion. Such broad discretion is vested in the
[hearing court] because only he [or she] sees the witnesses and the parties,
hears the testimony, and has the opportunity to speak with the child; he [or
she] is in a far better position than is an appellate court, which has only a cold
record before it, to weigh the evidence and determine what disposition will
best promote the welfare of the minor.

Id. at 585-86, 819 A.2d at 1051 (citations omitted).

DISCUSSION

I. Grandparents’ Intervention

Petitioner argues that her fundamental constitutional rights were violated when the

circuit court allowed the Grandparents to intervene in the custody dispute between her and

Father, prior to a finding of either parental unfitness or the existence of exceptional

circumstances. Petitioner notes that in McDermott v. Dougherty, 385 Md. 320, 869 A.2d

751 (2005), we held that, in third-party custody disputes, the circuit 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” before the circuit court

may consider the best interests of the child standard. See id., at 325, 869 A.2d at 754.

Petitioner contends, however, that we did not address the question of whether the required

49
preliminary finding of parental unfitness should occur in a separate proceeding or hearing

and did not consider the rule in the context of third-party intervention in parental custody

disputes. In Petitioner’s view, allowing third-parties to intervene in a parental custody

dispute without a prior finding of parental unfitness or extraordinary circumstances violates

the fundamental liberty interest of parents in raising their children without the interference

of the State. Petitioner contends that in the case at bar, the Grandparents were permitted

to intervene in the custody action on the basis of a general allegation of extraordinary

circumstances and by suggesting in their motion for intervention that they were concerned

about the fitness of the parents.

Petitioner notes that in Blixt v. Blixt, 774 N.E.2d 1052 (Mass. 2002), a

Massachusetts case addressing grandparent visitation, the Supreme Judicial Court of

Massachusetts required that petitions filed by grandparents seeking visitation with their

grandchild were required to be pled with specificity and verified in order to safeguard the

parents’ constitutional right to be free from interference in their parental decisions. See id.

at 1066. Petitioner contends that depriving a parent of custody is a far greater impingement

on parental rights, and yet, the circuit court in this case allowed the Grandparents to

intervene in the custody action without requiring any specific allegations that supporting

the claim that Petitioner was an unfit parent.

Petitioner avers that if third-parties are permitted to intervene in custody disputes

between parents prior to a finding that both parents are unfit then: (1) there is an increased

likelihood that the third-party will become a proxy for one of the parents in the custody

dispute; (2) the third-party’s claims will add to the already considerable cost and strain of

50
custody litigation; and (3) there will be an increased likelihood of bias and unfairness in

determining the outcome of the custody dispute.

Petitioner contends that allowing third-party intervention into custody disputes

encourages third-parties to serve as proxies, especially in circumstances where it becomes

evident that one of the parents will not be granted custody, which Petitioner avers occurred

here. Petitioner argues that allowing this type of proxy role in custody disputes may: (1)

cause harm to parent-child relationships; (2) violate the constitutional rights of the parents;

and (3) cause an increase in frequency, cost, and stress of custody litigation – which itself

constitutes an unconstitutional burden on a parent’s fundamental right to raise their

children. See McDermott, 385 Md. at 422, 869 A.2d at 811 (citing Parham v. J.R., 442

U.S. 584, 602, 99 S. Ct. 2493, 2504 (1979)); see also Major v. Maguire, 128 A.3d 675,

687 (N.J. 2016) (concluding in a grandparent visitation case that “[b]y virtue of its capacity

to intrude upon the privacy of both parent and child and consume scarce resources, the

parties’ litigation may itself infringe on the parent’s due process right to autonomy, and

cause harm to the child[.]”); Glidden v. Conley, 820 A.2d 197, 206 (Vt. 2003) (recognizing

that a parent’s constitutional right to raise a child can be implicated by burden of litigation

domestic relations proceedings).

Petitioner also argues that allowing third-parties to intervene prior to a finding of

unfitness facilitates biased and unfair findings based on subjective considerations made by

the hearing judge. Petitioner notes that in McDermott we cited approvingly a New Jersey

Supreme Court case, Watkins v. Nelson, 748 A.2d 558 (N.J. 2000), where the New Jersey

court expressly declined to adopt a test that would assess whether “the child’s growth and

51
development would be ‘detrimentally affected’ by placement with a parent.” See

McDermott, 385 Md. at 375-81, 869 A.2d at 783-87 (quoting Watkins, 748 A.2d at 565-

68). Among the flaws the Watkins Court found in such an approach, was that “[t]he use of

such a standard to decide custody disputes between a fit parent and a third party will evolve

into a ‘fitness contest’ whose outcome will depend on the whims of the trial court.” Id. at

380, 869 A.2d at 786 (quoting Watkins, 748 A.2d at 568). Petitioner also notes that the

Watkins Court expressed concern that without sufficient protection of parental rights, “a

judge may take children from their parents because the judge personally [disapproves of]

the parents.” Id. at 379, 869 A.2d at 786 (quoting Watkins, 748 A.2d at 567). In adopting

the rule that a third-party must first rebut the presumption favoring parental custody by

“proof of gross misconduct, abandonment, unfitness or the existence of ‘exceptional

circumstances,’” the Watkins court concluded that it wanted to “minimize judicial

opportunity to engage in social engineering in custody cases involving third parties.”

Watkins, 748 A.2d at 559, 567.

In contrast to Petitioner’s arguments, the Grandparents aver there was no procedural

bar to their filing a motion to intervene in the custody action, because Maryland Rule 2-

214 allows a person to intervene in an action “when the person’s claim or defense has a

question of law or fact in common with the action.” Maryland Rule 2-214(b)(1). The

Grandparents acknowledge that Maryland Rule 2-214 also requires the court to consider

“whether the intervention will unduly delay or prejudice the adjudication of the rights of

the original parties” and that there are certain procedural requirements the person seeking

to intervene must follow, but argue that they complied with the procedural requirements

52
and Petitioner was not unduly prejudiced. See Maryland Rule 2-214(b)(3), (c).42 The

Grandparents aver that Petitioner’s main argument is that we should read a preliminary

step into Maryland Rule 2-214 that would require an initial judicial determination of

unfitness or exceptional circumstances before a third-party would be permitted to

intervene. The Grandparents note, however, that the underlying purpose of Maryland Rule

2-214 “is to promote judicial economy in litigation.” See Md. Rules Commentary, Rule 2-

214 at 199. The Grandparents contend, therefore, that requiring the initial step that

Petitioner seeks would be in contravention of the purpose of the permissive intervention

rule.

The Grandparents argue that the main flaw in Petitioner’s argument is her

misreading of the plain language in McDermott. They contend that McDermott did not

contemplate a separate or bifurcated proceeding to determine whether a parent is fit or that

exceptional circumstances exist. Rather, the Grandparents argue that the “first” language

in McDermott is intended to instruct hearing courts that, prior to evaluating the best

interests of the child, it must first determine that the third-party has been elevated to the

same constitutional level as the parent. See In re Rashawn H., 402 Md. 477, 495, 937 A.2d

42
Maryland Rule 2-214(c) states that:

(c) Procedure. A person desiring to intervene shall file and serve a motion
to intervene. The motion shall state the grounds therefor and shall be
accompanied by a copy of the proposed pleading, motion, or response
setting forth the claim or defense for which intervention is sought. An
order granting intervention shall designate the intervenor as a plaintiff or
defendant. Thereupon, the intervenor shall promptly file the pleading,
motion, or response and serve it upon all parties.
53
177, 188 (2007). The Grandparents also argue that bifurcating the preliminary inquiry

from the best interest analysis would be difficult because many of the facts that establish

the initial inquiries would necessarily be used to address the best interest of the child

analysis. The Grandparents contend that Petitioner’s argument favoring a preliminary

proceeding also has a logical flaw because if the court was to determine in the initial

proceeding that both parents were unfit, the court would have no ability to act immediately

to protect the minor child.

The Grandparents also aver that Maryland has a well-established history of

permitting third-parties to participate in custody litigation. See De Angelis v. Kelley, 184

Md. 183, 40 A.2d 332 (1944) (acknowledging that a third-party has a right to participate

in custody litigation); Ross v. Pick, 199 Md. 341, 86 A.2d 463 (1952) (“Pick”) (holding

that there is a prima facie presumption that a child should be in the care and custody of

parents, and the burden is on the third-party to overcome the presumption). The

Grandparents note that in Ross v. Hoffman, 280 Md. 172, 372 A.2d 582 (1977)

(“Hoffman”), we concluded that

[w]hen 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.

54
Id. at 178-79, 372 A.2d at 587; see also McDermott, 385 Md. at 374, 869 A.2d at 783. The

Grandparents contend that these cases establish that they had the ability to initiate their

own custody case naming Petitioner and Father as defendants and that, had they done so,

the case would have likely been consolidated with the pending custody action between

Petitioner and Father, pursuant to Maryland Rule 2-503.43

We hold that there is no procedural bar preventing a third-party from seeking to

permissively intervene44 in an existent custody action as long as he or she can make a prima

43
Maryland Rule 2-503 states, in relevant part:

(a) Consolidation.
(1) When Permitted. When actions involve a common question of law or
fact or a common subject matter, the court, on motion or on its own
initiative, may order a joint hearing or trial or consolidation of any or
all of the claims, issues, or actions. An action instituted in the District
Court may be consolidated with an action pending in a circuit court
under the circumstances described in [Courts & Judicial Proceedings]
Article §6-104(b). The court may enter any order regulating the
proceeding, including the filing and serving of papers, that will tend
to avoid unnecessary costs or delay.

(2) Verdict or Judgment. In the trial of a consolidated action, the court
may direct that joint or separate verdicts or judgments be entered.

(b) Separate Trials. In furtherance of convenience or to avoid prejudice, the
court, on motion or on its own initiative, may order a separate trial of any
claim, counterclaim, cross-claim, or third-party claim, or of any separate
issue, or of any number of claims, counterclaims, cross-claims, third-
party claims, or issues.

The Grandparents note that both matters would have raised common questions of fact and
law because both dealt in the same subject matter – the custody of the Child.
44
Grandparents and other third-parties seeking to intervene in a custody action
between a child’s biological parents do not have the right to intervene in the custody action
(continued . . .)
55
facie showing that the parents are either unfit or that exceptional circumstances exist and

that the child’s best interests would be served in the custody of the third-party.45

(. . . continued)
As a matter of right. As we stated in McDermott,

Where the [custody] dispute is between a fit parent and a private third party,
however, both parties do not begin on equal footing in respect to rights to
“care, custody, and control” of the children. The parent is asserting a
fundamental constitutional right. The third party is not. A private third party
has no fundamental constitutional right to raise the children of others.
Generally, absent a constitutional statute, the non-governmental third party
has no rights, constitutional or otherwise, to raise someone else’s child.

McDermott, 385 Md. at 353, 869 A.2d at 770 (emphasis added). Thus, a third-party does
not have “an unconditional right to intervene as a matter of law” in a custody dispute
between a child’s parents, and may only do so if they satisfy the pleading requirements for
permissive intervention as modified by this opinion. See Maryland Rule 2-214.
45
In Koshko v. Haining, 398 Md. 404, 921 A.2d 171 (2007), a case addressing
grandparents’ right to visitation, we concluded that

if third parties wish to disturb the judgment of a parent, those third parties
must come before our courts possessed of at least prima facie evidence that
the parents are either unfit or that there are exceptional circumstances
warranting the relief sought before the best interests standard is engaged.

Id. at 440, 921 A.2d at 192. We also explained in a footnote that

[a]t any evidentiary hearing on a petition, the petitioners must produce
evidence to establish their prima facie case on the issue of either parental
unfitness or exceptional circumstances as well as evidence sufficient to tip
the scales of the best interests balancing test in their favor. We appreciate
that there may be circumstances where evidence proffered for the satisfaction
of a threshold element also may have relevance in the determination of the
best interest standard. We do not intend to foster a “trial within a trial.” At
the end of the day, petitioners, in order to be successful, must shoulder the
burdens to adduce at least a prima facie case on both the
unfitness/exceptional circumstances standard and the best interests standard.
(continued . . .)

56
Specifically, a third-party seeking to intervene in a custody dispute must include detailed

factual allegations in his or her pleading that, if true, would support a finding that both

biological parents are either unfit or that exceptional circumstances exist and that the best

interests of the child would be served in the custody of the third-party. See Maryland Rule

2-214(c) (requiring a party seeking to intervene in a cause of action to “state the grounds”

upon which they are seeking to intervene). We note that, in third-party custody disputes,

a third-party can only prevail in obtaining custody of a child if he or she overcomes the

presumption that the child’s best interest is served by being placed in the custody of the

parent, by showing that the parents are either unfit or there are exceptional circumstances

that would make custody with the parent detrimental to the best interests of the child. See

McDermott, 385 Md. at 374, 869 A.2d at 783; Hoffman, 280 Md. at 178-79, 372 A.2d at

587. The parties acknowledge the presumption favoring parental custody exists because

“the Due Process Clause of the Fourteenth Amendment protects the fundamental right of

parents to make decisions concerning the care, custody, and control of their children.”

Troxel v. Granville, 530 U.S. 57, 66, 120 S. Ct. 2054, 2060 (2000); see also McDermott,

385 Md. at 326, 869 A.2d at 754 (concluding that Troxel’s plurality holding that parents

(. . . continued)
Id. at 445 n. 23, 921 A.2d at 195 n. 23. We also acknowledged “that the standards and
processes relevant to all manner of custody and visitation determinations are nearly
identical.” Id. at 442-43, 921 A.2d at 194. Quoting our decision in Boswell v. Boswell,
352 Md. 204, 721 A.2d 662 (1998), we also recognized that “‘the case law discussed in
this opinion concerning custody determinations, and the principles governing such
situations, are equally applicable to visitation proceedings.’” Id. (quoting Boswell, 352
Md. at 236, 721 A.2d at 677). Thus, our own precedent provides support for adopting this
initial pleading requirement in custody actions where a third-party seeks to intervene

57
have a fundamental right to make decisions regarding their children is “instructive”)

(citation omitted).

Accordingly, we hold that for a third-party to have standing to intervene in a custody

action, he or she must plead sufficient facts that, if true, would support a finding of either

parental unfitness or the existence of exceptional circumstances and demonstrates that the

best interests of the child would be served in the custody of the third-party. We conclude

this additional pleading requirement is necessary to balance the constitutional right a parent

has over the care and custody of their children with the reality that circumstances exist

where the presumption favoring parents is overcome and the child’s best interests are

served in the custody of third-parties. This additional pleading requirement will also aid

the circuit court in determining whether intervention would “unduly delay or prejudice the

adjudication of the rights of the original parties[]” because the hearing judge will be

required to determine, prior to the third-party’s intervention, whether the proposed

intervenor has alleged sufficient facts in its pleading that, if true, would overcome the

constitutional presumption favoring parental custody. See Maryland Rule 2-214(b)(3).

We also conclude that a preliminary hearing is not the appropriate forum for a court

to make an ultimate determination as to whether a parent is unfit or that exceptional

circumstances exist in a third-party custody dispute. McDermott states that “the trial court

must first find” that the parents are either unfit or that extraordinary circumstances exist

“before a trial court should consider” the best interests of the child standard. McDermott,

385 Md. at 374-75, 869 A.2d at 783. By referencing the court charged with making the

fitness or exceptional circumstances determination as the “trial court[,]” McDermott

58
indicates that the assessment should occur at the custody merits hearing, not in a

preliminary proceeding. Additionally, as the Grandparents argue, having a preliminary

proceeding in advance of the custody merits hearing would likely result in redundancy in

the proceedings because facts presented at the preliminary hearing regarding parental

fitness or exceptional circumstances may well be relevant to the court’s determination at

the custody hearing regarding the best interests of the child. Accordingly, we conclude that,

in third-party custody disputes, the circuit court is not required to hold a preliminary or

separate proceeding to determine whether a parent is fit or whether exceptional

circumstances exist prior to the custody merits hearing. The hearing judge may assess the

parents’ fitness and determine whether exceptional circumstances exist at the custody

merits hearing as long as he or she makes that determination prior to assessing the best

interest of the child.

In the case at bar, Petitioner argues that the Grandparents’ motion for permissive

intervention was insufficient because it contained only a general allegation of extraordinary

circumstances and expressed their concern regarding the fitness of the parents. We

disagree. We note Maryland Rule 2-214(c) requires the Grandparents to attach their

proposed Complaint for Custody to their Motion for Permissive Intervention. As noted,

supra, in their proposed Complaint, the Grandparents alleged that: (1) although the Child

resided with Petitioner, the Grandparents “have acted in loco parentis” with the Child since

birth; (2) the Child has spent significant periods of time with the Grandparents – up to five

overnights per week; (3) the Grandparents have actively participated in the Child’s

schooling, paid for the Child’s child care, organized activities and play dates for the Child,

59
and helped take the Child to doctor’s appointments; (4) the Grandparents became

increasingly aware of Petitioner and Father’s abuse of drugs while the Child was in their

care; (5) Petitioner informed the Custody Evaluator that she was not using drugs, but then

subsequently tested positive for marijuana in a mandatory drug test; (6) evidence indicated

Petitioner lied about being coerced into using drugs by Father – as evidenced by her

positive drug test post-separation; and (7) the circuit court sua sponte required both parents

to submit to psychiatric evaluations. We conclude these allegations are sufficient to make

a prima facie showing that either Father or Petitioner or both were unfit and that there may

have been exceptional circumstances that existed in this case. Accordingly, we hold the

circuit court did not err in allowing the Grandparents to intervene in the custody dispute

between Petitioner and Father.

II. Unfitness

a. Appealability

We note that Petitioner did not independently appeal the unfitness issue decided by

the Court of Special Appeals to this Court, but rather, incorporated the argument into her

argument regarding permissive intervention. See supra. We also note that the

Grandparents did not address the circuit court’s unfitness finding in their brief. The brief

exclusively addressed Petitioner’s argument regarding the circuit court’s grant of their

motion to intervene in the custody action. The unfitness issue was, however, raised and

argued before the Court of Special Appeals, which concluded that the circuit court did not

err in finding Petitioner to be an unfit parent, and Petitioner raised the issue in her petition

for a writ of certiorari, albeit, again, it was incorporated into her intervention argument.
60
We also note that both sides argued the issue extensively before us at oral argument on

June 2, 2017. We conclude that the issue of Petitioner’s fitness as a parent was, therefore,

sufficiently preserved for our review. See Maryland Rule 8-131.46

b. The Circuit Court’s Finding That Petitioner Was Unfit

46
Maryland Rule 8-131 states, in relevant part, that

(a) Generally. The issues of jurisdiction of the trial court over the subject
matter and, unless waived under [Maryland] Rule 2-322, over a person
may be raised in and decided by the appellate court whether or not raised
in and decided by the trial court. Ordinarily, the appellate court will not
decide any other issue unless it plainly appears by the record to have been
raised in or decided by the trial court, but the Court may decide such an
issue if necessary or desirable to guide the trial court or to avoid the
expense and delay of another appeal.
(b) In Court of Appeals – Additional Limitations.
(1) Prior Appellate Decision. Unless otherwise provided by the order
granting the writ of certiorari, in reviewing a decision rendered by the
Court of Special Appeals … the Court of Appeals ordinarily will
consider only an issue that has been raised in the petition for certiorari
or any cross-petition and that has been preserved for review by the
Court of Appeals. Whenever an issue raised in a petition for certiorari
or a cross-petition involves, either expressly or implicitly, the
assertion that the trial court committed error, the Court of Appeals
may consider whether the error was harmless or non-prejudicial even
though the matter of harm or prejudice was not raised in the petition
or in a cross-petition.
* * *

Cf. State v. Parker, 334 Md. 576, 596-97, 640 A.2d 1104, 1114 (1994) (concluding that
the use of the term “ordinarily” in Maryland Rule 8-131(b) “implies that this Court
possesses the discretion to consider issues that were not necessarily raised in the petition
or order for a [w]rit of [c]ertiorari.”) (citing State v. Bell, 334 Md. 178, 188, 638 A.2d 107,
113 (1994)), with, Holbrook v. State, 364 Md. 354, 375, 772 A.2d 1240, 1252 (2001)
(declining to consider petitioner’s claim that reckless endangerment convictions should
merge with an arson conviction as a matter of “fundamental fairness” when the argument
was neither raised in petitioner’s petition for writ of certiorari nor was it argued before the
Court of Special Appeals).
61
 Petitioner argues that much of the evidence the hearing judge relied on in finding

her unfit came from Father and M, prejudicial witnesses, who testified about events that

occurred several years prior to the parties’ separation and the custody hearing. Petitioner

also contends that the hearing judge failed to explain why, if Petitioner was such an unfit

parent, the Child was described at the hearing as a bright, well-adjusted student throughout

kindergarten, prior to the Grandparents’ intervention. Petitioner acknowledges that she

tested positive for marijuana in one of her drug tests, but contends the hearing court did not

allow her to challenge the accuracy of the result and that, even if she had smoked marijuana,

the General Assembly has decriminalized it. See Criminal Law Article §5-601. Petitioner

also concedes that the Child began exhibiting behavioral problems at the end of his

kindergarten year, but notes that there was no evidence or expert testimony presented at

the custody hearing regarding the cause of the Child’s behavioral difficulties. Petitioner

also avers that, in considering the Crisis Center incident, the hearing judge ignored the

testimony from the school principal and guidance counselor stating that Petitioner

responded promptly to their request to discuss the incident and that she was generally a

responsible and responsive parent. Petitioner contends the hearing judge also made

unsupported conclusions about her emotional attachment to the Child, including his finding

that:

I didn’t hear how she said, you know, I just love to put him to bed at night. I
like to tuck him in. I like to read him a story. We take little walks together. I
like to go through colors with him and numbers with him. He loves to wear
this particular sweatshirt. You didn’t hear any of that. I didn’t see any really
love or total attachment. I mean, this is her flesh and blood, her own son.
Most mothers would give up their lives for their children in a tragedy. A child
fell into a river, they’d dive in. I think in this case, I don’t know what she’d

62
 do. She might leisurely walk over and make a call. I don’t know. But what
I’ve seen from the time the child was born, she’s not even acting the way a
babysitter would act. Because if she were the babysitter and she went to
school on the fourth and the teacher told her what happened or daycare
provider, she’d be calling everybody she possibly could. She’d be calling the
mother, she’d be calling the father, she’d be calling the grandparents. Did
you hear – let me tell you what the principal said.

Petitioner also notes that the hearing judge stated that he found Petitioner “to be a

very dishonest witness, and I’ll tell her. She may be a good mother and a lot of good

qualities. They didn’t all come out.” In Petitioner’s view, the hearing judge’s concession

that “[s]he may be a good mother” should have ended the inquiry regarding her fitness as

a parent. Petitioner argues that it is precisely this type of subjective assessment – or judicial

“social engineering” – that the Watkins Court, see supra, was concerned about in refusing

to adopt the “detrimentally affected” test. Petitioner contends that this case demonstrates

why a court’s finding of parental unfitness should be based on objective, rather than

subjective, criteria – such as the specific criteria contained in the Termination of Parental

Rights statute. See Family Law Article (“Fam. Law”) §5-323(d).47

47
Fam. Law §5-323(d) states:

Except as provided in subsection (c) of this section, in ruling on a petition
for guardianship of a child, a juvenile court shall give primary consideration
to the health and safety of the child and consideration to all other factors
needed to determine whether terminating a parent’s rights is in the child’s
best interests, including:

(1) (i) all services offered to the parent before the child’s placement, whether
offered by a local department, another agency, or a professional;
(ii) the extent, nature, and timeliness of services offered by a local
department to facilitate reunion of the child and parent; and
(iii) the extent to which a local department and parent have fulfilled their
(continued . . .)
63
(. . . continued)
obligations under a social services agreement, if any;
(2) the results of the parent’s effort to adjust the parent’s circumstances,
condition, or conduct to make it in the child’s best interests for the child
to be returned to the parent’s home, including:
(i) the extent to which the parent has maintained regular contact with:
1. the child;
2. the local department to which the child is committed; and
3. if feasible, the child’s caregiver;
(ii) the parent’s contribution to a reasonable part of the child’s care and
support, if the parent is financially able to do so;
(iii) the existence of a parental disability that makes the parent consistently
unable to care for the child’s immediate and ongoing physical or
psychological needs for long periods of time; and
(iv) whether additional services would be likely to bring about a lasting
parental adjustment so that the child could be returned to the parent
within an ascertainable time not to exceed 18 months from the date of
placement unless the juvenile court makes a specific finding that it is
in the child’s best interests to extend the time for a specified period;
(3) whether:
(i) the parent has abused or neglected the child or a minor and the
seriousness of the abuse or neglect;
(ii) 1. A. on admission to a hospital for the child’s delivery, the mother
tested positive for a drug as evidenced by a positive toxicology test’
or
B. upon the birth of the child, the child tested positive for a
drug as evidenced by a positive toxicology test; and
2. the mother refused the level of drug treatment recommended by
a qualified addictions specialist, as defined in §5-1201 of this
title, or by a physician or psychologist, as defined in the Health
Occupations Article;
(iii) the parent subjected the child to:
1. chronic abuse;
2. chronic and life-threatening neglect;
3. sexual abuse; or
4. torture;
(iv) the parent has been convicted, in any state or any court of the United
States, of:
1. a crime of violence against:
A. a minor offspring of the parent;
B. the child; or
(continued . . .)
64
 We note that determining whether a circuit court erred in finding a biological parent

“unfit” in a third-party custody dispute is an issue of first impression for this Court.

Considering the issue necessarily requires a nuanced understanding of precisely what the

term “unfit” means within the context of Maryland family law. We observe, however, that

our precedent provides no such clear definition. The only decision from this Court that

provides any definition for the word “unfit” in the custody context is In re Rashawn H.,

402 Md. 477, 937 A.2d 177 (2007), a termination of parental rights (“TPR”) case that states

“[i]n a custody case, unfitness means an unfitness to have custody of the child, not an

unfitness to remain the child’s parent[.]” Id. at 498, 937 A.2d at 190 (emphasis in original).

The Rashawn Court’s definition clarifies that an “unfitness” determination in a custody

dispute is distinct from an “unfitness” finding in the TPR context, but does not provide a

clear definition of “unfitness” for our purposes. While Petitioner argues that we should,

(. . . continued)
C. another parent of the child; or
2. aiding or abetting, conspiring, or soliciting to commit a crime
described in item 1 of this item; and
(v) the parent has involuntarily lost parental rights to a sibling of the
child; and
(4) (i) the child’s emotional ties with and feelings towards the child’s parents,
the child’s siblings, and others who may affect the child’s best interests
significantly;
(ii) the child’s adjustment to:
1. community;
2. home;
3. placement; and
4. school;
(iii) the child’s feelings about severance of the parent-child relationship;
and
(iv) the likely impact of terminating parental rights on the child’s well-
being.
65
nonetheless, adopt the criteria contained in Fam. Law §5-323(d) to inform our

consideration of “unfitness” in the custody context, the Rashawn Court expressly states,

[t]he deficiencies that may properly lead to a finding of unfitness or
exceptional circumstances in a custody case will not necessarily suffice to
justify a TPR judgment. For one thing, those deficiencies may be temporary
and correctable – sufficiently severe to warrant denying custody or visitation
at a particular point in time, but with the understanding that the custody or
visitation decision is subject to reconsideration upon a showing of changed
circumstances. As noted, however, a judgment terminating parental rights,
once enrolled, is not subject to discretionary reconsideration based merely on
the parent’s changed circumstances.

Id. Thus, although we agree with Petitioner that the criteria for determining whether a

parent is “unfit” in a third-party custody dispute requires clarity, we decline to adopt the

objective criteria contained in Fam. Law §5-323(d). Instead, we look to other jurisdictions

that have previously considered whether a parent is “unfit” in the custody context to

determine the appropriate factors a court must consider.

The most recent set of cases we could locate discussing “unfitness” in the third-

party custody context come from the Supreme Court of Alabama and the Supreme Court

of Mississippi, both decided in 2003. In Ex Parte N.L.R., 863 So.2d 1066 (Ala. 2003), the

Supreme Court of Alabama considered a case where the maternal grandmother was granted

temporary custody of two minor children after she intervened in the parents’ child support

and visitation litigation seeking custody of the children. Id. at 1066. As relevant to the

case at bar, the Supreme Court of Alabama explained that:

The prima facie right of a natural parent to the custody of his or her child, as
against the right of custody in a nonparent, is grounded in the common law
concept that the primary parental right of custody is in the best interest and
welfare of the child as a matter of law. So strong is this presumption, absent
a showing of voluntary forfeiture of that right, that it can be overcome only

66
 by a finding, supported by competent evidence, that the parent seeking
custody is guilty of … misconduct or neglect to a degree which renders that
parent an unfit and improper person to be entrusted with the care and
upbringing of the child in question.”

Id. at 1068-69 (quoting Ex Parte Terry, 494 So.2d 628, 632 Ala. 1986) (internal quotation

marks omitted) (emphasis added).

In In re Custody of M.A.G., 859 So.2d 1001 (Miss. 2003), the Supreme Court of

Mississippi considered a case where a child was placed in the custody of third-parties after

the child’s father was arrested for the murder of the child’s mother. Id. at 1003. All charges

against the father were subsequently dropped, but the third-party custodians, nonetheless,

sought permanent custody of the child, alleging that the father was an unfit parent. Id. At

the custody trial, the court found that the father was an unfit parent because the testimony

reflected that: (1) the father abused drugs and alcohol before he was incarcerated, and

continued to do so after he was released from prison; (2) he had abused the mother; (3) he

provided little moral leadership to his family; (4) he was convicted of public drunkenness

after he was released from prison; (6) he bathed with his girlfriend while the child was in

the house; and (7) the child witnessed the father’s nephew having sex with his girlfriend.

Id. In considering the trial court’s unfitness finding, the Supreme Court of Mississippi

explained that “this Court has ruled that unfitness may be shown by[:] (1) abandoning the

child; (2) behaving so immorally as to be detrimental to the child; or (3) being unfit

mentally or otherwise to have custody of the child.” Id. at 1004 (quoting Carter v. Taylor,

611 So.2d 874, 876 (Miss. 1992); see also Westbrook v. Oglesbee, 606 So.2d 1142, 1144-

67
45 (stating the same). The Court then considered the merits of the father’s challenge of the

finding of unfitness, and concluded the trial court did not err because

[t]here was substantial evidence of drug and alcohol abuse- at times in the
presence of [the child]. There were errors of judgment by [the father] such as
renting a horror movie to watch with his son when the six-year-old [child]
thought [the father] had killed his mother and brother with a baseball bat.
There was evidence of drunken driving by [the father] with [the child] in the
car. [The father] exposed [the child] to sexual situations. [The father]
threatened and abused [the mother]. [The father] was involved in sexual
relationships with married women – once in the presence of her husband –
and was promiscuous. [The father] never reported his live-in girlfriend and
their five-month-old son missing after they were killed.

Id. at 1004.

In a 1994 case decided by the Supreme Court of Oklahoma, the Oklahoma Court

considered the circumstances where the paternal grandmother of a child sought to gain

custody of the child by intervening in the parents’ divorce proceeding. McDonald v.

Wrigley, 870 P.2d 777, 778 (Okla. 1994). The trial court granted temporary custody to the

grandmother, but later dismissed the proceeding for lack of jurisdiction. Id. The

grandmother appealed, and Supreme Court of Oklahoma held that

[i]n order for third persons to deprive a parent of custody of his [or her]
children, some inability on the part of the parent to provide for the child’s
ordinary comfort, intellectual or moral development must be shown.
Evidence of unfitness must be clear and conclusive and the necessity for
depriving the parent of custody must be shown to be imperative. In a divorce
case, the district court may award custody to a third person if both parents
are found to be unfit. If a parent is not found to be unfit, is able to care for
his [or her] children and desires to do so, he [or she] is entitled to custody as
against others who have no permanent or legal right to custody.

Id. at 779-80 (quoting Haralson v. Haralson, 595 P.2d 443, 445 (Okla. 1979)) (footnotes

omitted). The McDonald Court also determined that

68
 [t]he [parents’] unfitness may not be demonstrated by a mere comparison
between what is offered by the competing parties, but only by a showing that
the parents cannot reasonably be expected to provide for the child’s ordinary
comfort or intellectual and moral development. Such order must be a product
of a hearing of which the parent had notice with the opportunity to be heard.
The order must include the conditions found by the trial court to constitute
the parental unfitness. This is so that the parent knows what, if corrected,
would amount to a change of condition in the eyes of the court.

Id. at 781 (internal citations omitted). The McDonald Court concluded that all grandparent

custody actions – absent a final termination order pursuant to its version of a termination

of parental rights proceeding – may be considered temporary and that “[d]uring the child’s

minority the doors to the courthouse will remain open to the parent who would show that

the conditions underlying the declaration of unfitness have been corrected.” Id. at 782.

In another decision published in 1994, the Supreme Court of North Carolina

considered a case where adoptive parents filed a lawsuit seeking custody of a minor child

over the child’s biological parents, after the adoptive parents’ initial attempt to adopt the

child was voided by the Supreme Court of North Carolina and the child was subsequently

placed in the custody of the local department of social services that then placed the child

with the adoptive parents. Petersen v. Rogers, 445 S.E.2d 901, 902 (N.C. 1994). At trial,

the court ordered that the child be returned to the biological parents and the court denied

the adoptive parents’ request for custody. Id. On appeal, the Court of Appeals of North

Carolina observed that

[t]he [Supreme Court of North Carolina’s] examination [in Jolly v. Queen,
142 S.E.2d 592 (N.C. 1965)] of the paramount custody right of the mother
of an illegitimate child illustrates the strength of natural parents as against
others: Although a trial court “might find it to be in the best interest of a
legitimate child of poor but honest, industrious parents” that his [or her]
custody be given to a more affluent person, such a finding “could not confer

69
 a right as against such parents who had not abandoned their child, even
though they had permitted him to spend much time” with the more affluent
person. Instead, “parents’ paramount right to custody would yield only to a
finding that they were unfit custodians because of bad character or other,
special circumstances. So it is with the paramount right of an illegitimate’s
mother.”

Id. at 904 (quoting Jolly, 142 S.E.2d at 596). The Petersen Court concluded that because

there was no finding that the biological parents had neglected their child’s welfare in any

way, their “paramount right to custody” of the child prevailed. Id. at 905.

In an Arkansas case that was decided in 1990, the Supreme Court of Arkansas

considered the result where a custody dispute arose between the child’s biological mother

and the child’s maternal grandmother. Schuh v. Roberson, 788 S.W.2d 740, 740 (Ark.

1990).48 At the custody trial, the juvenile court ultimately granted custody in favor of the

maternal grandmother. On appeal, the Schuh Court determined that

[c]ourts are very reluctant to take from the natural parents the custody of their
child, and will not do so unless the parents have manifested such indifference
to its welfare as indicates a lack of intention to discharge the duties imposed
by the laws of nature and of the state to their offspring suitable to their station
in life.

48
In Schuh, the court originally awarded temporary custody of the child to the
child’s biological mother in the mother’s divorce proceeding. Schuh, 788 S.W.2d at 740.
Before the custody was finalized, however, the maternal grandmother intervened in the
case and was awarded temporary custody. Id. Shortly thereafter, the court discovered that
the child was illegitimate and the court subsequently vacated its custody order. Id. at 741.
The mother brought new proceedings seeking to establish paternity and obtain custody of
the child, and the maternal grandmother again intervened. Id. After procedural delays that
reformulated the custody process in Arkansan courts, the case was transferred from the
county court to a juvenile judge and, after a hearing, permanent custody of the child was
awarded to the maternal grandmother. Id.

70
Id. at 741 (quoting Parks v. Crowley, 253 S.W.2d 561, 563 (Ark. 1952)).49 The Schuh

Court subsequently remanded the case to allow the hearing judge to consider the issue of

the mother’s fitness as a parent. Id.

In a 1981 case decided by the Supreme Court of Georgia, the Georgia Court

considered a case where the father of two minor children brought an action against the

children’s’ paternal aunt who had been granted temporary custody and the children’s

biological mother who was the legal custodian of the children. Carvalho v. Lewis, 274

S.E.2d 471, 472 (Ga. 1981). In vacating the lower court’s grant of custody to the paternal

aunt, the Carvalho Court first acknowledged that in custody disputes between a parent and

49
In Parks, the Arkansas Court considered a case where the paternal grandparents
of a child refused to return the child to the custody of the biological mother due to concerns
that the child was endangered in the mother’s home. 253 S.W.2d at 562. The mother sought
custody, and the trial court subsequently granted custody to the paternal grandparents due
to its finding that the mother “was addicted to drink and frequent profanity to such an extent
as to make her unfit to have the custody of the child.” Id. On appeal, the Parks Court
determined that

[i]n considering this case, we do not lose sight of the fact that we are dealing
with the welfare of a little girl of the tender age of five years when obviously
she is most in need of the loving care of her real mother unless the mother is
so depraved morally or otherwise as would render her unfit to have her child.
While [the third-parties] have had her custody for most of her life, however,
when the real mother shows that she is entitled to [c]ustody, we must know,
human nature being what it is, that the love and attachment of this little girl
for her grandparents (appellees) cannot have become so deep rooted and
attached that it could not, within a very short time, be transferred to her real
mother by proper treatment, love and care, if given the opportunity.

Id. at 563. The Parks Court ultimately concluded that, because the mother had quit
drinking, joined a church, and her conduct had improved since the initial custody
determination, the previous custody order should be modified and the custody of the child
was to be transferred to her. See id. at 563-64.
71
a third-party, the trial court must first determine whether the parent is, inter alia, unfit

pursuant to case law established by the Supreme Court of Georgia. Id. (citing Perkins v.

Courson, 135 S.E.2d 388 (1964)). The Cavalho Court then explained that

[a] finding of unfitness must center on the parent alone, that is, can the parent
provide for the child sufficiently so that the government is not forced to step
in and separate the child from a parent. A court is not allowed to terminate a
parent’s natural right because it has determined that the child might have
better financial, educational, or even moral advantages elsewhere.

* * *

The ability of a parent to raise his or her child may not be compared to the
superior fitness of a third person. That ability must be examined in a
scrutinous, abstract light. Only in custody disputes between parents may a
court determine which party is more suitable to be awarded custody, this
being the so-called “best interest of the child” test.

Id. at 472 (internal citations omitted).

In 1971, the Supreme Court of Minnesota considered a case where a biological

mother filed a lawsuit seeking to regain custody of her child who she and the father had

previously placed in the custody of the child’s paternal grandparents due to their marital

difficulties, and who had remained in the custody of the paternal grandparents after the

parents divorced. Wallin v. Wallin, 187 N.W.2d 627, 628-29 (Minn. 1971). The Wallin

Court observed that in third-party custody disputes,

it is fundamental that parents have a natural right to the child and in order to
deprive a parent of custody in favor of a third person there must be grave
reasons shown. Factors to establish such grave reasons would be neglect,
abandonment, incapacity, moral delinquency, instability of character, or
inability to furnish the child with needed care.

Id. at 630 (quoting State ex rel. Jaroszewksi v. Prestidge, 81 N.W.2d 705, 710 (Minn.

1957)) (internal citations omitted). The Wallin Court then concluded that

72
 [t]hus, it would seem to be a fundamental rule of law that, all things being
equal, as against a third person, a natural mother would be entitled as a matter
of law to custody of her minor child unless there has been established on the
mother’s part neglect, abandonment, incapacity, moral delinquency,
instability of character, or inability to furnish the child with needed care[.]

Id. (internal citations omitted). The Wallin Court ultimately remanded the case to the lower

court for further proceedings because it concluded that the record before it was inadequate

to determine whether the district court abused its discretion in granting custody of the child

to the paternal grandparents based solely on the ground that the a transfer of custody might

be disruptive to the child. Id. at 631-32.

In addition to the third-party custody cases described, supra, we also located several

other cases that, while not third-party custody cases, provide useful precedent for

understanding how “unfitness” has been defined in the custody context. In a 2007 decision,

the Supreme Court of Arkansas considered a case where grandparents of a minor child filed

a petition for guardianship after refusing to return the child to his biological mother. Devine

v. Martens, 263 S.W.3d 515, 518-19 (Ark. 2007), overruled by Fletcher v. Scorza, 359

S.W.3d 413 (2010).50 After a hearing, the circuit court awarded permanent guardianship

of the child to the grandparents, finding, inter alia, that the parents were unfit to have

custody, the grandparents were qualified for guardianship, and it would be in the best

50
In Fletcher, the Supreme Court of Arkansas held that “[t]o the extent that any of
our prior cases suggest a standard of fitness or unfitness in guardianship proceedings
involving the statutory natural-parent preference, we overrule them.” 359 S.W.3d at 421.
We acknowledge that the Arkansas Court’s decision in Fletcher overrules the holding in
Devine, but nonetheless find the Devine Court’s discussion of “unfitness” in the
guardianship context useful to our inquiry, even if the Devine Court’s ultimate holding was
subsequently overruled.
73
interest of the child for guardianship to be granted to the grandparents. Id. at 519. In

finding that the mother was unfit, the circuit court determined that: (1) she repeatedly

turned responsibility of the child over to the grandparents; (2) she had not provided a stable

home environment; (3) the child was exposed to inappropriate “art” inside the home,

including nude pictures of the mother; (4) the mother was guilty of educational neglect due

to the child’s excessive absences and tardies from school that resulted in criminal action;

(5) the mother had an internet presence of herself that would be inappropriate for young

children to see; (6) the mother did not consider the thought that the child and his friend

might see her pictures on the internet; and (7) the mother provided a home environment

that was dirty and smelled of urine, resulting in the child developing bladder and bowel

problems. Id.

On appeal, and as relevant to the case at bar, the Devine Court observed that

Courts are very reluctant to take from the natural parents the custody of their
child, and will not do so unless the parents have manifested such indifference
to its welfare as indicates a lack of intention to discharge the duties imposed
by the laws of nature and of the state to their offspring suitable to their station
in life. When, however, the natural parents so far fail to discharge these
obligations as to manifest an abandonment of the child and the renunciation
of their duties to it, then becomes the policy of the law to induce some good
man or woman to take the waif into the bosom of their home[.]

Id. at 524 (quoting Lloyd v. Butts, 37 S.W.3d 601, 608 (2001) (emphasis in original). The

Devine Court determined that the circuit court erred in finding that the mother was unfit

because it concluded the issues presented at the guardianship proceeding were more akin

to issues that arise in dependency-neglect cases and that, in such cases, the Arkansas state

policy

74
 strongly favors reunification with the natural parents above all other
alternatives for dependent-neglected juveniles. Parents whose children are
adjudicated dependent-neglected are generally offered family services and
an opportunity to prove they have made improvements that are in keeping
with their children’s best interests. Additionally, parents who make
improvements are almost without exception reunited with their children.

Id. (citing Arkansas Code, Ann., §§9-27-102 – 9-28-1003 (Repl. 2002 & Supp. 2007)).

After reviewing the record, the Devine Court concluded that

it is clear that [the mother] took significant action toward rectifying any
issues that would keep her from retaining custody of her son. These are the
very types of improvements that parents are encouraged to make in the best
interests of their child or children, and [the mother] should not be disparaged
for her efforts to improve her home and her parenting skills.

Id. at 525. In a footnote, the Devine Court also observed that

it is clear to us that the circuit court based its judgment as to [the mother’s]
guidance of [the child], in part, upon its own morals and viewpoint of how a
child should be raised. This court has made it clear that the state cannot
interfere with a natural parents’ right to custody simply to better the moral
and temporal welfare of the child as against an unoffending parent.

Id. at 525, n. 5 (citing Payne v. Jones, 415 S.W.2d 57 (1967)). The Devine Court also

observed that

[t]his state’s courts should not be in the business of permanently removing
children from their parents’ custody simply because the parents have
exercised poor judgment in caring for their children. Just as the Arkansas
Juvenile Code recognizes the efforts of parents in dependency-neglect
actions to improve their homes and parenting skills, we should encourage
and recognize such improvements by parents in guardianship actions.
Frankly, it is not in a child’s best interests to take custody from a natural
parent who has rectified all issues relating to his or her fitness, and grant
custody to a third party, such as that child’s grandparents.

Id. at 526.

75
 In 2003, the Supreme Court of Kentucky considered the circumstances where

biological parents who had previously signed consents for their child to be adopted

subsequently revoked their consents after the contractual time in which to do so had passed,

but prior to the voluntary termination of rights proceeding. Moore v. Asente, 110 S.W.3d

336, 339 (Ken. 2003). After their revocation, the biological parents filed an independent

custody action seeking to regain custody of their child from the adoptive parents who, at

the time of the filing, had physical custody of the child. Id. The circuit court determined

that the parents’ consents to adoption were invalid, for reasons not relevant to the case at

bar, and, therefore, granted custody of the child to the biological parents concluding that

the adoptive parents lacked jurisdiction to contest custody. Id. On appeal, the Supreme

Court of Kentucky explained that a nonparent seeking custody of a child “must first show

by clear and convincing evidence that the parent has engaged in conduct similar to activity

that could result in the termination of parental rights by the state.” Id. at 360 (footnote

omitted). In a footnote following its explanation, the Moore Court observed that

[t]he type of evidence that is necessary to show unfitness on the part of the
mother in a custody battle with a third party is: (1) evidence of inflicting or
allowing to be inflicted physical injury, emotional harm or sexual abuse; (2)
moral delinquency; (3) abandonment; (4) emotional or mental illness; and (5)
failure, for reasons other than poverty alone, to provide essential care for the
children.

Id. at 360, n.100 (quoting David v. Collinsworth, 771 S.W.2d 329, 330 (1989)) (other

citation omitted). Ultimately, the Moore Court determined that, due to the specific factual

circumstances in that case that are not relevant to the unfitness issue, the parents had waived

76
their superior right to custody and the Court remanded the case to the trial court to

determine custody based on the best interests of the child standard. Id. at 361-62.

In Gomez v. Savage, 580 N.W.2d 523 (Neb. 1998), the Supreme Court of Nebraska

considered a case where a father filed a habeas corpus action seeking to obtain custody of

two of his three children from the children’s adoptive parents after the mother had

previously placed the children up for adoption without his consent, which the Supreme

Court subsequently vacated,51 and after the mother subsequently revoked her

relinquishment of parental rights and gave the adoptive parents power of attorney over the

children and allowed the children to continue living with the adoptive parents. Id. at 528-

29. At the habeas proceeding, the circuit court determined that the father was unfit because

he: (1) had a history of unemployment, alcohol abuse, (2) had repeated prior contacts with

law enforcement, and (3) repeatedly failed to provide parental support.52 Id. at 530. The

51
The Gomez Court noted that it reviewed the trial court’s decision to allow the
adoption to proceed, even without the father’s consent, and held that because the father had
not given his consent the court lacked jurisdiction to hear the adoption proceedings. See
In re Adoption of Kassandra B. & Nicholas B., 540 N.W.2d 554 (1995).
52
The Gomez Court noted that testimony presented at the trial reflected that: (1)
four days prior to the hearing the father had been charged with assault and battery,
disorderly conduct, and possession of a controlled substance arising out of a bar fight; (2)
the father had twenty-three previous contacts with law enforcement, including convictions
for shoplifting, giving false information, trespassing, failure to appear, obstruction of
justice, destruction of property, fraudulent obtaining of benefits, fraud by receipt of
unemployment benefits, and DUI; (4) the father had had his driver’s license had been
revoked in Iowa for six years due to his DUI convictions; (5) the father had assaulted his
wife in front of his stepchildren while the father was intoxicated; (6) the father had a history
of selling drugs, using drugs in the presence of his children, and keeping drugs in the home
while the children were there; (7) the father had a history of unemployment, although he
(continued . . .)

77
circuit court also determined that the adoptive parents had lawful custody of the children

due to the power of attorney granted by the mother. Id. at 530. On appeal, the Gomez

Court noted it had previously defined “unfitness” as “‘a personal deficiency or incapacity

which has prevented, or will probably prevent, performance of a reasonable parental

obligation in child rearing and which has caused, or probably will result in, detriment to a

child’s well-being.’” Id. at 533 (quoting Uhing v. Uhing, 488 N.W.2d 366, 372 (1992)).

The Gomez Court also explained that

[i]f the evidence of unfitness is insufficient to justify termination of parental
rights in an action maintained under the Nebraska Juvenile Code,[53] similarly
deficient evidence of parental unfitness in a habeas corpus proceeding
prevents a court from granting child custody to one who is a stranger to the
parent-child relationship.

Id. (quoting Uhing, 488 N.W.2d at 373). The Gomez Court also noted that

(. . . continued)
testified at the trial that he had recently secured employment at a roofing company; (8) the
father does not have a checking or savings account and was delinquent in his child support
payments for one of the children. 580 N.W.2d at 530.
53
Nebraska’s Revised Statute, Ann. §43-292 (Cum. Supp. 1996) states, in relevant
part, that:

The court may terminate all parental rights between the parents or the mother
of a juvenile born out of wedlock and such juvenile when the court finds such
action to be in the best interests of the juvenile and it appears by the evidence
that one or more of the following conditions exists:
* * *
(4) The parents are unfit by reason of debauchery, habitual use of
intoxicating liquor or narcotic drugs, or repeated lewd and lascivious
behavior, which conduct is found by the court to be seriously
detrimental to the health, morals, or well-being of the juvenile[.]
* * *

78
 [a] court cannot deprive a parent of the custody of a child merely because the
parent has limited resources or financial problems, or because the parent’s
lifestyle is different or unusual. The fact that a person outside the immediate
family relationship may be able to provide greater or better financial care or
assistance for a child than can a parent is an insufficient basis to deprive a
parent of the right to child custody.

Id. at 533-34 (internal citations omitted). Ultimately, the Gomez Court determined the trial

court did not err in finding the father was unfit because it concluded that

[t]he fact that [the father] claims that he made some last minute
improvements does little in light of his past behavior to show that he is now
capable of fulfilling his duties as a parent. In the instant case, the record
clearly shows that [the father] has an extensive criminal record, has left his
children in the past without providing support, has difficulty maintaining
employment or refuses to maintain employment, and has difficulties
involving alcohol and drug use.

Id. at 534.

In another petition for guardianship case decided in 1986, the Supreme Court of

Minnesota reviewed a trial court’s decision to grant guardianship to the children’s

grandfather over the biological father. Matter of Welfare of P.L.C., 384 N.W.2d 222, 224-

25 (Minn. 1986). The P.L.C. Court observed that

The trial court relied on several reasons for its decision: the father’s drinking,
his living situation and church attendance with the children, evidence of
physical abuse, and the need for continuity in care of the children. The court
made the following finding of parental unfitness: ‘That the risk to said girls
at their father’s home and the consequent danger, and their need for
continuity and stability is such that said [father] is not fit to have either the
guardianship or physical custody of said girls[.]’

Id. at 226. In reviewing the trial court’s finding of unfitness, the P.L.C. Court noted that

“[t]he grandparents had the burden of presenting evidence to overcome the presumption of

parental unfitness. They had to show ‘grave reasons’ for preferring them to a natural parent

79
for custody of the children. These reasons approach those required for the termination of

parental rights.” Id. at 225 (citations omitted). The Court also noted that to find parental

unfitness in a termination of parental rights proceeding, “there must be a ‘consistent pattern

of specific conduct before the child or specific conditions directly relating to the parent and

child relationship either of which are determined by the court to be permanently detrimental

to the physical or mental health of the child[.]” Id. at 227 (quoting Minn. Stat.

§260.221(b)(4) (1984)).

The P.L.C. Court concluded that the trial court abused its discretion in finding that

the father was unfit because it failed to “accord [the father] the presumption of parental

fitness.” Id. at 226. The P.L.C Court determined that, although the trial court found that

the father had a drinking problem, there was “no finding or evidence to support a finding

that [the father’s] drinking, whether diagnosed as alcoholism or not, affects his ability to

care for the children.” Id. The P.L.C Court also noted that there was no evidence regarding

the degree of force, or evidence of resulting injury due to the father’s discipline and,

therefore, was not a “grave reason” justifying denial of his right to custody. Id. (citations

omitted). The P.L.C Court also determined that the father’s living arrangement and his

churchgoing habits were not shown to be detrimental to the children, and concluded that

“[c]onsideration of such factors, at least without further evidence, represents only ‘ad hoc

judgments on the beliefs and lifestyles … of the proposed custodian.’” Id. at 227 (quoting

Pikula v. Pikula, 374 N.W.2d 705, 713 (Minn. 1985)). Finally, the P.L.C. Court

acknowledged that the trial court found evidence of spousal abuse but concluded that “there

was no showing that any such abuse was directly related to the parent-child relationship or

80
permanently detrimental to the children, who were found by the trial court to have a good

relationship with their father.” Id.

In a 1984 case decided by the Supreme Court of Oklahoma, the Oklahoma Court

considered the circumstances where a father filed a habeas corpus action seeking to regain

custody of his daughter after the maternal grandparents, who had retained custody of the

child since the mother’s death, filed a petition to adopt the child. Application of Grover,

681 P.2d 81, 82 (Okla. 1984). The trial court acknowledged that the father could provide

a fit and proper home to raise the child, but ultimately concluded that it was in the best

interests of the child to remain in the custody of the grandparents. Id. On appeal, the

Grover Court recognized that

[t]o justify the courts in depriving parents of the care and custody of their
own children, the parents special unfitness must be shown by evidence that
is clear and conclusive and sufficient to make it appear that the necessity for
doing so is imperative. Ordinarily and generally, it must be established that
their condition in life, character and habits are such that provision for the
childrens’ ordinary comfort, their intellectual and moral development cannot
reasonably be expected at their hands.

Id. (quoting Gibson v. Dorris, 386 P.2d 186, 188 (1963)) (quotation marks omitted).

Ultimately, the Grover Court concluded that because the trial court found the father was a

fit parent, and that finding was supported by the record, “the preference accorded by law

to the natural parent to the custody of his or her child determines that the best interests of

the child will be served by awarding custody to the natural parent.” Id. at 83.

In Perkins, a case relied on by the Cavalho Court, see supra, the Supreme Court of

Georgia considered a case where a father filed a habeas corpus action against the maternal

grandparents seeking to regain custody of his child who had previously been placed in their

81
custody. Perkins v. Courson, 135 S.E.2d 388, 389 (Ga. 1964), superseded by statute as

stated in, Clark v. Wade, 544 S.E.2d 99 (Ga. 2001).54 As relevant to the case at bar, the

Perkins Court observed that

The issue of fitness is much broader than whether a parent has voluntarily
contracted away his [or her] right, or consented to an adoption, or failed to
provide necessaries, or abandoned, or consented to the child’s receiving the
proceeds of his [or her] own labor, or consented to its marriage, or treated it
cruelly … or whether, because of cruel treatment, the ordinary has appointed
a guardian for the child … or whether, because a child under 12 years of age
has been found under immoral, obscene or indecent influences, the ordinary
has it committed to an institution[.]

[I]t may be shown, for instance[], that the parent is inflicted either mentally
or physically to the extent that he [or she] cannot provide any care for the
child; that he [or she] suffers from a serious and contagious disease which
would endanger the child; that he [or she h]as criminal tendencies making it
hazardous to expose a child to him [or her]; or that he [or she h]as other such
disqualifications …. Furthermore, it may be shown that, although
completely immoral and degenerate, a parent has had insufficient contact
with the child for the events covered by [Georgia statute] to have occurred.
Award of a child to such an unfit person simply because he [or she] has not

54
In Clark, the Georgia Court acknowledged its prior case law addressing findings
of unfitness in the third-party custody context, but concluded that

In enacting [Georgia Code §19-7-1], the legislature changed the law
governing parent-third party custody disputes and added an additional way
by which parental power could be lost. The Georgia General Assembly
intended to replace the parental unfitness standard with the best-interest-of-
the-child standard. Adoption of this new standard shifts the trial court’s
inquiry solely from the current fitness of the biological parent to raise the
child to include consideration of the child’s interest in a safe, secure
environment that promotes his or her physical, mental and emotional
development. In considering what is in the best interest of the child, the trial
court may consider the child’s historical relationship with the parent, the
child’s relationship with the third-party custodian, and the child’s special
medical, emotional, or educational needs.

544 S.E.2d at 104 (internal footnotes omitted).
82
 lost his [or her] right to custody by one of the modes of [the Georgia statute]
would be contrary to law and reason.

Id. at 396.55

From these cases, we conclude certain factors emerge that are relevant to a hearing

court’s inquiry into whether a parent is unfit sufficient to overcome the parental

presumption in a third-party custody dispute. We conclude that a court, in determining

whether a parent is unfit, may consider whether: (1) the parent has neglected the child by

manifesting such indifference to the child’s welfare that it reflects a lack of intent or an

inability to discharge his or her parental duties; (2) the parent has abandoned the child; (3)

there is evidence that the parent inflicted or allowed another person to inflict physical or

mental injury on the child, including, but not limited to physical, sexual, or emotional

abuse; (4) the parent suffers from an emotional or mental illness that has a detrimental

impact on the parent’s ability to care and provide for the child; (5) the parent otherwise

demonstrates a renunciation of his or her duties to care and provide for the child; and (6)

the parent has engaged in behavior or conduct that is detrimental to the child’s welfare.

Addressing the second factor, we conclude that “neglect” for the purposes of a finding of

unfitness means that the parent is either unable or unwilling to provide for the child’s

ordinary comfort or for the child’s intellectual and moral development.

We acknowledge that “due to the vagaries of human nature and the infinite variety

of people’s actions, no two sets of facts and circumstances in child custody disputes are

55
The Code sections referenced by the Perkins Court are Georgia Code, §§74-108,
74-109, and 74-110.
83
alike.” Hoffman, 280 Md. at 187, 372 A.2d at 591. Accordingly, we hold that the factors

enumerated above are not the exclusive criteria by which a court must rely to determine

whether a parent is unfit, but should, nonetheless, serve as a guide for the court in making

its findings. Additionally, although several of the cases we cited, supra, conclude that

parental unfitness in a third-party custody dispute must be demonstrated by clear and

convincing evidence, our precedent establishes that such evidence may be shown by a mere

preponderance of the evidence. Cf. In re Rashawn, 402 Md. at 499, 937 A.2d at 190

(observing that the “preponderance standard” applies in custody cases), with Moore, 110

S.W.3d at 359 (“One exception to the parent’s superior right to custody arises if the parent

is shown to be ‘unfit’ by clear and convincing evidence.”); McDonald, 870 P.2d at 781

(“[t]o obtain custody in a divorce proceeding, even on a temporary basis as is sought here,

over the objection of a parent, a grandparent must show the parents’ unfitness by evidence

that is clear and conclusive, and makes the necessity for doing so appear imperative.”)

(citation omitted); Gomez, 580 N.W.2d at 534 (concluding that the cumulative effect of the

father’s behavior “provides clear and convincing evidence that he is unfit to have custody

of the children.”); Wallin, 187 N.W.2d at 629 (“a mother is entitled to the custody of her

children unless it clearly appears that she is unfit or has abandoned her right to custody[.]”);

Perkins, 135 S.E.2d at 393 (“in order to divest him of this right upon the ground of unfitness

for the trust, the proof brought to show the alleged unfitness should be clear and

convincing.”) (internal quotation marks omitted).

We also note that even if a parent is found unfit and a court grants custody to a third-

party based on its finding that it is in the child’s best interest to be placed in the third-

84
party’s custody, a parent is not foreclosed from seeking to regain custody of his or her child

in the future upon a showing of changed circumstances. See In re Rashawn, 402 Md. at

496, 937 A.2d at 188 (observing that custody and visitation orders are subject to

reconsideration “upon a showing of changed circumstances on the parent’s part.”).

Turning to the case at bar, we note that, in concluding that Petitioner was unfit, the

hearing court found that: (1) Petitioner repeatedly lied in her testimony; (2) Petitioner did

not do the things the BIA told her to do; (3) Petitioner took drugs voluntarily, had not

stopped, and would likely continue to take drugs; (4) Petitioner’s alleged diagnosis of DID

was concerning regardless of whether Petitioner actually had the disorder or not; (5)

Petitioner’s inability to see the Child naked in the shower was “[w]eird, odd, bizarre, [and]

troubling[;]” (6) the Ks’ moving into the marital home created a chaotic atmosphere that

the hearing judge assumed would probably have made the BIA sick had she walked into

the home; (7) Petitioner was selfish for not allowing the Child to go to Mississippi with his

Grandparents during the summer in 2014; (8) Petitioner’s handling of the Crisis Center

referral was inappropriate; (9) Petitioner had failed to make adjustments to address the

Child’s needs, including the hearing judge’s disbelief that Petitioner had adjusted her work

schedule; and (10) Petitioner repeatedly made excuses for everything in her life, including

the drug use and the polyamorous sexual activities. Although the hearing judge’s findings

implicate several of the factors we discussed, supra, upon closer examination of the hearing

judge’s findings, we conclude that the hearing judge repeatedly made findings that were

not supported by the evidence presented at the hearing and were, therefore, erroneous.

85
Accordingly, because the hearing judge relied on erroneous findings in concluding that

Petitioner was an unfit parent he, thereby, abused his discretion.

We conclude that the hearing judge did not err in finding that Petitioner repeatedly

lied in her testimony because evidence in the record supported the hearing judge’s

determination that she lied about: (1) her drug use; (2) being forced to have a sexual

relationship with M; (3) taking the Child to school on September 8, 2014; and (4) lying to

the BIA. We hold, however, that this finding is only relevant in assessing the veracity of

Petitioner’s testimony in contrast to other witnesses, and that the hearing judge erred to the

extent that he relied on Petitioner’s untruths as evidence that she was an unfit parent.

We agree with the hearing judge that evidence was presented at the hearing

indicating that Petitioner did not do all the things requested of her by the BIA. The record

reflects that the BIA requested that Petitioner and Father contact the National Family

Resiliency Center (“NFRC”) to obtain psychiatric care for the Child in July 2014, but

Petitioner did not contact the NFRC until August 28, 2014 and Petitioner subsequently

failed to take the Child to an appointment at the NFRC on September 9, 2014. See supra

n. 34. Although Petitioner’s failure to comply with the BIA’s requests were concerning,

the hearing judge’s finding ignored the fact that Petitioner was independently seeking

psychiatric care for the Child, which was corroborated by the testimony of her therapist.

Thus, while Petitioner did not comply with the specific actions the BIA wanted her to take,

she did comply with the intent underlying the BIA’s requests – finding psychiatric care for

the Child.

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 In regard to his third finding, the hearing judge found that Petitioner voluntarily took

drugs based on Father sending her research on new drugs for them to take, and the judge

concluded that finding new drugs and new ways to get high or hallucinate was a hobby of

both Petitioner’s and Father’s. We agree that the record indicates that Petitioner voluntarily

took drugs with Father and M during her marriage to Father and that substantial evidence

presented at the hearing indicated that both Petitioner and Father were interested in finding

and taking a variety of drugs. We note, however, that there was no evidence presented at

the hearing regarding Petitioner’s use of drugs, other than marijuana, after she separated

from Father in May 2013 – over a year prior to the custody hearing. Additionally, there

was no evidence presented at the hearing that the Child was aware of the drug use or that

Petitioner’s drug use detrimentally impacted the Child. Thus, we conclude the hearing

judge erred in the weight he gave Father and M’s testimony regarding Petitioner’s drug use

when it was not corroborated by more contemporaneous evidence, aside from one positive

drug test for marijuana, and no evidence was presented indicating that Petitioner’s drug use

had a detrimental impact on the Child or that he was even aware that Petitioner used drugs.

We conclude the hearing judge did not err in finding that, regardless of whether

Petitioner was actually diagnosed with DID, there was sufficient evidence in the record to

indicate that she was, at various points throughout her life, acting as though she did.

Pretending to suffer from a serious mental illness, itself, signals that the parent may suffer

from some other emotional or mental illness and evidence presented at the hearing

indicated that Petitioner’s alter ego “Morgan” disliked the Child and expressed an interest

in harming the Child. We acknowledge that Petitioner testified at the hearing that Morgan

87
was not an alter ego, but rather a nickname she had been given by friends, and that Father

and M were the only witnesses who testified as to the existence of Petitioner’s alleged alter

egos. We hold that it was within the hearing judge’s discretion to weigh the credibility of

the witnesses testifying in regard to Petitioner’s alleged DID and he did not err in

expressing concern regarding the evidence supporting the possibility that Petitioner was

pretending to suffer from a serious mental illness. See supra n.4.

We conclude that the hearing judge erred in finding that Petitioner’s alleged

inability to see the Child naked or in the shower was “[w]eird, odd, bizarre, [and]

troubling[.]” We note that the only witnesses who testified that Petitioner could not see

the Child naked or in the shower were Father and M – witnesses who had not lived in the

marital house with Petitioner after June 2013. Thus, their knowledge of Petitioner’s ability

to regularly care and provide for the Child, including seeing him naked or in the shower,

was limited. Additionally, there was no evidence presented by any other witness who had

regular contact with the Child indicating that the Child was unclean, unhealthy, or that

there were any other indications that Petitioner was not providing for the Child’s ordinary

care.

We also find very little evidence in the record substantiating the hearing judge’s

findings that the Ks living in the marital home created chaos. The only evidence presented

at the hearing regarding the Ks was that: (1) they moved into the marital home in July 2014

with several dogs and between fifteen and twenty-five guinea pigs; (2) the Ks brought their

biological daughter with them and the Child referred to the Ks daughter as his sister; and

(3) M asserted that she had heard in prior conversations with Petitioner and Father that the

88
Ks were hoarders, but acknowledged she did not know about the cleanliness of the marital

home after the Ks moved in. Despite this dearth of evidence, the hearing judge made

several findings based purely on his own suppositions regarding the atmosphere of the

marital home once the Ks moved in. Specifically, the hearing judge found that the marital

home was “about as chaotic as possible” and that he understood why “[Petitioner] didn’t

want the [BIA], to see the inside of that house. [The BIA] probably would have got sick if

she had walked in there. And that’s where you’re raising a child and two girls and a little

boy?” Neither of these findings made by the hearing judge were supported by the record.

No evidence was presented regarding why the BIA did not enter the marital home and there

was no evidence discussing the cleanliness of the home, aside from the acknowledgement

that multiple animals were present. Additionally, nothing in the record indicated that

anyone had become ill due to the conditions inside the marital home. Accordingly, the

hearing judge erred in the findings he made regarding the atmosphere and cleanliness of

the marital home while the Ks were living there.

The only factual basis for the hearing judge’s finding that Petitioner was selfish was

when she refused to allow the Child to take a trip to Mississippi with his Grandparents

during his spring break in 2014. We note that Petitioner allowed the Child to go to the

Outer Banks with his Grandparents during the summer of 2014, and there were multiple

occasions over the years where the Child was allowed to go on both day-trips and vacations

with his Grandparents. We also note that, at the time Petitioner refused to allow the Child

to go to Mississippi with the Grandparents, she was the custodial parent of the Child, and

as we have repeatedly held, “Grandparents … do not enjoy a constitutionally recognized

89
liberty interest in visitation with their grandchildren. Rather, whatever right they may have

to such visitation is solely of statutory origin implemented through judicial order.” Koshko

v. Haining, 398 Md. 404, 423, 921 A.2d 171, 182 (2007). Because the visitation order only

specifies that the Grandparents were entitled to visitation with the Child on Tuesdays and

Thursdays from after school until 8 p.m. and every other weekend, Petitioner was fully

within her right as the Child’s parent to refuse to allow the Child to go on the trip to

Mississippi with his Grandparents. The hearing judge, therefore, erred in finding that

Petitioner’s “selfishness” in exercising her constitutional right as a parent supported a

finding of unfitness.

Addressing the hearing judge’s findings regarding the Crisis Center referral, we agree

that the circumstances surrounding the referral reflect that the Child was in major crisis,

and we agree that Petitioner did not handle the Child’s behavioral difficulties that day in

the best possible way. We conclude that the hearing judge’s findings did not accurately

reflect the evidence presented at the hearing, and focused, instead, on his subjective views

of Petitioner. In his findings regarding the Crisis Center referral, the hearing judge

determined that

[the Child’s] in major, major trouble when you’re threatening to blow up a
school and punch a vice principal at the age of six in the stomach? That’s
unheard of. Those are the kids that we send here to the Finan Center to give
them intense examination when they’re in the juvenile delinquent system.
These are kids that probably have little chance of making it, because they
don’t have a family to go back to for the most part.

And yes, on that day any mother worth her salt would tell first of all the
grandparents and do everything she could do to address that problem. My
son did what? We’ve got to address this right now. But to hand him off to the
grandmother and not say anything? That’s just bizarre. What kind of love

90
 does she have for her son? What kind of interest does she have for the son?
It’s like my shift’s over, somebody else worry about it. I’ll punch out. I’m at
the factory. I didn’t finish what I was supposed to do today, but the next
worker can take over. Grandma can take over. That’s the attitude she
displayed.

* * *

That child is in the mental emergency room or should be right now. And
that’s the way she should be addressing it. And most mothers would try to
move heaven and hell to help their child, to do everything they possibly
could. But not say anything? Now, I assume she went to Children’s
[Hospital]. I don’t know whether she went out to the county for that or not.
But in any event, I don’t think there was significant follow-up. And anything
that she did do in the way of getting some counseling or looking into anything
else – I think she was getting good instruction from her attorney, but
obviously not following other things.

* * *

We acknowledge that Petitioner should have either taken the Child directly to the

Crisis Center or at least communicated the existence of the referral to the Grandmother

before the Grandmother took the Child visitation. We note that evidence presented at the

hearing indicated that the Grandparents and Petitioner were not communicating effectively

at the time of the incident,56 and the school principal intimated in her testimony that

Petitioner may not have felt that she could have taken the Child to the Crisis Center right

away due to the court-ordered visitation on Thursdays from after school to 8 p.m. We also

note that the hearing judge acknowledged in his findings that Petitioner had taken the Child

to Children’s Hospital that night, and evidence in the record indicated that they arrived

56
As an example, we note that after taking the Child to the Crisis Center the
Grandparents and Father did not inform Petitioner that they had done so and they did not
provide her with the completed referral form after they dropped the Child off at the marital
home.
91
there around 9:15 p.m. Thus, while we agree as a general matter that Petitioner could have

handled the Crisis Center referral incident more competently, the record does not support

the hearing judge’s view that she acted “bizarre[ly]” in failing to inform the Grandmother

of the Crisis Center referral or that she was treating her parental responsibilities as a shift

at a factory, where she could “punch out” and have the Grandparents worry about the

Child’s behavior. In contrast to the hearing judge’s assessment, there was ample evidence

in the record reflecting that Petitioner was actively trying to address the Child’s behavioral

difficulties.

We also conclude that the hearing judge erred in finding that Petitioner had failed

to make adjustments to address the Child’s needs. We note that the hearing judge stated

that he did not believe that Petitioner had adjusted her work schedule to accommodate the

Child’s needs, and that the Child was spending ten hours a day at school while in major

crisis. Based on that finding, the hearing judge concluded that “I would like to think a

parent would quit their job if they had to, to deal with that problem with a child. It’s no

different than if that child was in the hospital with two broken arms, two broken legs, or in

a coma. You have to make adjustments.” Even accepting the hearing judge’s finding that

Petitioner was not willing to adjust her work schedule long-term to accommodate the needs

of the Child that fact, alone, is not sufficient for the hearing judge’s conclusion that she

made no adjustments.57 Both the school principal and school guidance counselor testified

57
We note that, although the Child was spending a long period of time at school
some days, the visitation order allowed the Grandparents to pick the Child up from school
at 3:30 p.m. two days a week, and on the other days, Petitioner had enrolled him in before-
and after-care programs.
92
that Petitioner was a responsive parent, and would come at the “drop of a hat[]” to help

address the Child’s behavioral difficulties. The record also indicates that Petitioner was

working with her therapist to become a better parent, and she was actively seeking to find

an appropriate therapist for the Child, in addition to her coordination with the school

regarding whether the Child should receive an IEP. We also conclude that it was

inappropriate for the hearing judge to state that a parent who has a child with behavioral

difficulties should quit their job in order to demonstrate he or she is trying to accommodate

the child’s needs, especially in light of the clear evidence in this case that multiple parties

were actively seeking to address the Child’s behavioral issues without Petitioner sacrificing

her employment.

The hearing judge also erred in finding that Petitioner’s “mak[ing] excuses for

everything” supported a conclusion that she was an unfit parent. We note that most of the

hearing judge’s findings in this regard focused on his perceptions of Petitioner and were

only loosely connected to facts from the record. For example, the hearing judge stated that

he had not heard from Petitioner that she liked to put the Child to bed, or read him a story,

or take walks together, or what the Child’s favorite outfits were, and based on these

observations the hearing judge determined that

I didn’t see any really love or total attachment. I mean, this is her flesh and
blood, her own son. Most mothers would give up their lives for their children
in a tragedy. A child fell into a river, they’d dive in. I think in this case, I
don’t know what she’d do. She might leisurely walk over and make a call. I
don’t know. But what I’ve seen from the time this child was born, she’s not
even acting in the way a babysitter would act. Because if she were the
babysitter and she went to school on the fourth and the teacher told her what
happened or daycare provider, she’d be calling everybody she possibly
could. She’d be calling the mother, she’d be calling the father, she’d be

93
 calling the grandparents. Did you hear – let me tell you what the principal
said. Schools can’t make you do anything now, because that’s the way the
system is. But certainly when they send a kid to the [C]risis [C]enter, it’s
major. It’s major.

* * *

Although we agree that Petitioner did not testify extensively about her day-to-day life

taking care of the Child, beyond discussing his behavioral difficulties, the record reflects

that she was actively involved in his life and seeking to address his behavioral problems.

Based on the record before us, we conclude that the hearing judge’s characterization that

he did not know whether Petitioner would rescue the Child from drowning if he fell into a

river was unwarranted and was not supported by any evidence in the record indicating that

Petitioner was such a detached parent. In contrast, ample evidence was presented

indicating that Petitioner was actively involved in the Child’s life – choosing the school’s

he would attend, purchasing his school supplies, working with the school to address his

behavioral difficulties, and coordinating visitation with the Grandparents and Father.

Finally, we note that the hearing judge found that

we’ve got [Petitioner] not only taking drugs – and I find that she still takes
them or she’s still ready to take them. And she has no appreciation what
they’ve done. I don’t find any evidence that she feels terrible about doing all
these sex things with her child in the house, because she blames it on her
husband. She blames the drugs on her husband. She blames the sex on her
husband. She blames [M] on her husband. She says this is a – everybody is
making up these personalities. When [the couple’s therapist] testified, who
did everything she could to help [Petitioner] – she even said that she had
personalities.

The hearing judge did not err in finding that Petitioner still took drugs or was likely to take

them because the record reflects that although the parties’ separated in May 2013,

94
Petitioner testified positive for marijuana in January 2014. We conclude, however, the

hearing judge erred in finding that there was no “evidence that [Petitioner] feels terrible

about doing all these sex things with her child in the house[]” to support his determination

that Petitioner was unfit because Petitioner’s sexual relationships were irrelevant to the

unfitness inquiry absent evidence indicating that her sexual relationships were detrimental

to the Child or that the Child was even aware of Petitioner’s sexual activities.

Accordingly, we hold that because many of the findings the hearing judge relied on

in concluding that Petitioner was unfit were erroneous, and because the judge’s non-

erroneous findings were, by themselves, insufficient to satisfy any of the factors we

discussed, supra, we conclude that the hearing judge abused his discretion in finding that

Petitioner was an unfit parent.

III. “Exceptional Circumstances”

As noted, supra, for a court to grant custody of a child to a third-party, the court

must first find that the parents are either unfit or that “extraordinary circumstances” exist.

In the seminal case Ross v. Hoffman, supra, we concluded that there are certain factors

“which may be of probative value” in determining whether “exceptional circumstances”

exist in a third-party custody dispute. 280 Md. at 191, 372 A.2d at 593. Those factors are:

(1) the length of time the child has been away from the biological parent; (2) the age of the

child when care was assumed by the third-party; (3) the possible emotional effect on the

child of a change of custody; (4) the period of time which elapsed before the parent sought

to reclaim the child; (5) the nature and strength of the ties between the child and the third-

party custodian; (6) the intensity and genuineness of the parent’s desire to have the child;

95
and (7) the stability and certainty as to the child’s future in the custody of the parent. See

id.; see also McDermott, 385 Md. at 419, 869 A.2d at 809 (referencing the Hoffman factors

as the “standards and guidelines that generate ‘exceptional circumstances[.]’”). Although

the Hoffman factors serve merely “as a guide” to aid a court in determining whether

exceptional circumstances exist, see Hoffman, 280 Md. at 188, 372 A.2d at 592, we note

that the Hoffman factors served as the analytical framework that the hearing judge relied

on in ultimately finding that exceptional circumstances existed.58 Accordingly, although

we have previously acknowledged the existence of other factors that may be relevant in an

exceptional circumstances inquiry,59 we will confine our review of the hearing judge’s

exceptional circumstances finding to his application of the Hoffman factors to the facts in

this case. Petitioner observes that the decisions relied on by the Hoffman Court to establish

its factor test all involved an award of custody to a third-party in circumstances where those

third-parties had been custodians of the child in question for a long period of time. See id.

at 188-91, 372 A.2d at 592-93.60 Petitioner contends that because, in her view, the

58
We note that, as a general matter, the hearing judge did not err in relying on the
Hoffman factors as the basis for his exceptional circumstances analysis.
59
In addition to the factors enumerated in Hoffman, we have also held that factors
such as “the stability of the child’s current home environment, whether there is an ongoing
family unit, and the child’s physical, mental, and emotional needs” are relevant to an
“exceptional circumstances” analysis. See Sider v. Sider, 334 Md. 512, 532, 639 A.2d
1076, 1086 (1994) (quoting Turner v. Whisted, 327 Md. 106, 116-17, 607 A.2d 935, 940
(1992)); see also Monroe v. Monroe, 329 Md. 758, 775-76, 621 A.2d 898, 906 (1993)
(concluding that the child’s relationship with a third-party is a relevant factor in exceptional
circumstances inquiry).
60
See Piotrowski v. State, 179 Md. 377, 378-79, 383, 18 A.2d 199, 199, 201-02
(continued . . .)
96
“exceptional circumstances” test and the Hoffman factors relate only to situations where a

parent has not retained continuous custody of the child, the hearing judge erred in finding

“exceptional circumstances” existed in this case because Petitioner has always had custody

of the Child. Petitioner also argues that in McDermott, we further refined the establishment

of “extraordinary circumstances” by stating that a third-party must prove “there are

extraordinary circumstances posing serious detriment to the child ….” See McDermott,

385 Md. at 374-75, 869 A.2d at 783. In Petitioner’s view, therefore, an inquiry into whether

“extraordinary circumstances” exist should focus on whether the child would be

endangered by remaining in the custody of the parent.

The Grandparents contend that based on the evidence developed at the custody

hearing, the judge appropriately found that “exceptional circumstances” existed in this

case. The Grandparents note that Petitioner avers that the “exceptional circumstances” test

relates to situations where the child has been in custody of a third-party for a long period

of time, but they argue that the duration a child lives with a third-party is not the exclusive

consideration. The Grandparents observe that in Monroe v. Monroe, 329 Md. 758, 621

(. . . continued)
(1941) (concluding it would be injurious to remove the five-year-old child from her
grandparents’ home where she had been living since she was four months); Dietrich v.
Anderson, 185 Md. 103, 106, 116, 43 A.2d 186, 187, 191 (noting that the child had been
in the care of the foster parents for some five years and expressing concern regarding the
child’s immediate future if custody was given to the biological father); Pick, 199 Md. at
351-53, 86 A.2d at 469 (determining that the third-party custodians had the care and
custody of the child from the time he was less than two years old until he was eleven and
that an abrupt removal of the child could be injurious); Trenton v. Christ, 216 Md. 418,
421-23, 140 A.2d 660, 661-62 (observing that the child had lived with her maternal
grandparents for about six years and concluding there was a genuine risk to the child’s
well-being if custody was changed).
97
A.2d 898 (1993), we stated that “[i]n assessing whether there are exceptional

circumstances, the critical question remains, what is the best interest of the child?” Id. at

775, 621 A.2d at 906. The Grandparents concede that many of the decisions applying

Hoffman place significant emphasis on the duration that a child has been away from a

parent, but argue our conclusion in Monroe makes clear this factor is not the lynchpin of

the analysis. The Grandparents aver the evaluation must also consider the relationship that

exists between the child and the parties as well. See id.

The Grandparents also argue there was considerable evidence established in the case

at bar that reflected both the length and depth of the relationship that existed between the

Grandparents and the Child. The Grandparents note the Custody Evaluator testified that

they were important in the Child’s life – providing him with a safety net and buffer – and

acknowledged the Child spent almost every other weekend with the Grandparents as well

as a significant amount of time during the work week. The Grandparents also note that

they have been extensively involved in the Child’s life since he was born and were involved

in providing daycare, taking him to doctor’s appointments and to school, gifting him

clothing, caring for him during the summers, and taking him on vacations. The

Grandparents also contend Petitioner previously acknowledged she had referred to the

Grandparents as the Child’s “other primary caretakers” and that the Grandparents were

significantly involved in the Child’s medical care, education, and summer activities prior

to her and Father’s separation. The Grandparents also aver that evidence presented at the

custody trial indicated Petitioner’s relationship with the Child was “hot and cold,” she did

not like parenting the Child on her own, and she lacked the ability to discipline the Child.

98
The Grandparents argue there was ample evidence adduced at the hearing to support the

judge’s conclusion that exceptional circumstances existed and that the Grandparents had

filled the role of parents throughout the life of the Child.

In the case at bar, the hearing judge determined that exceptional circumstances

existed based on his findings that: (1) the Child was away from Petitioner and Father

“whenever they were going to do some tripping[;]” (2) the Grandparents assumed care of

the Child “from the time of [his] birth[]” or “[a]t least after [Petitioner] went back to work

after the first year[;]” (3) the relationship between the Child and the Grandparents is

“extremely strong[;]” (4) there was no “intensity and genuineness on the part of

[Petitioner]” in having custody of the Child; and (5) that if the Child remained in the

custody of Petitioner then “[h]e would continue with instability and he would certainly fail.

He’d be in crisis. He’d be out of that public school system probably for good.” We

conclude that the hearing judge misapplied the facts in this case to the Hoffman factors.

While we agree with the Grandparents’ argument that the first Hoffman factor is not

the exclusive consideration a court is required to make in determining whether exceptional

circumstances exist, we hold that the court must first determine that the child at issue has

spent a long period of time away from his or her biological parent before considering the

other Hoffman factors. Cf. McDermott, 385 Md. at 325-26, 869 A.2d at 754 (holding that

duration that father had been separated from child did not constitute “exceptional

circumstances” where father was required to be away for long periods of time due to his

occupation as a merchant marine); with Hoffman, 280 Md. at 192, 372 A.2d at 594

99
(concluding that “practically all” of the Hoffman factors were present and affirming lower

court’s award of custody to third-parties).

We conclude that for the first Hoffman factor to support a finding that exceptional

circumstances exist, the hearing court must find that the child at issue has been away from

his or her biological parent for a “long period of time.” As Petitioner notes, in our other

decisions that have affirmed the existence of exceptional circumstances, the hearing courts

consistently found that the child at issue had spent years in the care of the third-party. See

supra n. 60; see also Hoffman, 280 Md. at 192, 372 A.2d at 594 (finding the first factor

was satisfied where there was a “protracted separation of mother from child, beginning at

the child’s tender age of about four months and lasting for eight and half years[.]”). Given

this precedent, we conclude that the first Hoffman factor’s purpose is to determine whether

the child at issue has been outside the care and control of the biological parent for a

sufficient period of time for a court to conclude that the constructive physical custody of

the child has shifted from the biological parent to a third-party. Stated another way, the

first Hoffman factor seeks to determine whether a biological parent has, in effect,

abandoned his or her child. As we observed in Pick,

[w]here a child has been left by its parents in the care and custody of others,
but the parents reclaim it soon afterwards, and the parents are competent to
have its custody, the court gives more weight to the law of nature, which
recognizes the force of parental affection, than to the probability of benefit
to the child by leaving it where it is, even the probability of advantages which
wealth and social position might bestow. But where the parents surrender
complete custody of an infant for such a long time that its interests and
affections all attach to the person who fill the place of the parents, and the
infant develops into a healthy and happy child, then if the parents seek to
reclaim the child by judicial decree, the court should place the right of the
parents subordinate to the right of those who performed the parental duties,

100
 for the ties of companionship strengthen by lapse of time, and upon the
strength of those ties the welfare of the child largely depends.

199 Md. at 351-52, 86 A.2d at 469 (citations omitted).

We conclude that the hearing judge in the case at bar erred in finding that the facts

in the present case were sufficient to find that Petitioner had, in effect, transferred

constructive custody of the Child to the Grandparents based exclusively on the fact that the

Child was not in their care “whenever they were going to do some tripping.” The record

reflects that Petitioner and Father’s tripping schedule was anywhere from every other

weekend to once a month prior to the parties’ separation in May 2013 – not nearly the

duration in time we have held is sufficient to weigh the first Hoffman factor in favor of an

exceptional circumstances finding. Additionally, the record reflects that throughout the

Child’s life, and even more so after Petitioner and Father separated, Petitioner remained

active in the Child’s upbringing and care, including providing shelter to the Child in the

marital home, deciding what school the Child should attend, making doctor’s appointments

for the Child, organizing his transportation to those appointments, responding to the

Child’s behavioral problems at school, and seeking out ways to address those behavioral

difficulties. Accordingly, we conclude the hearing judge erred in determining that the first

Hoffman factor weighed in favor of an exceptional circumstances finding because the

underlying facts that the hearing judge relied on were not sufficient to support his

conclusion that Petitioner had abandoned the Child or transferred physical custody of the

Child to the Grandparents for a long period of time.

101
 We also hold that, for the same reasons we concluded that the hearing judge erred

in applying the first Hoffman factor, the hearing judge also erred in finding that the

Grandparents had assumed care for the Child “from the time of [his] birth[]” because that

conclusion ignores the facts in the record reflecting that Petitioner has played an active role

in the care of the Child since he was born.61

We also observe that the hearing judge did not make substantive factual findings

regarding the third and fourth Hoffman factors. Thus, we do not have a clear picture of

how the hearing judge balanced these two factors in ultimately concluding that

“exceptional circumstances” existed in this case.

We agree with the hearing judge’s assessment that the relationship between the

Child and the Grandparents is “extremely strong[.]” The Grandparents are heavily

involved in the Child’s life and spend substantial quality time with the Child that includes

61
In McDermott we noted that

parents should be encouraged in time of need to look for help in caring for
their children without risking loss of custody. The presumption preferring
parental custody is not overcome by a mere showing that such assistance was
obtained. Nor is it overcome by showing that those who provided the
assistance love the children and would provide them with a good home.
These circumstances are not alone sufficient to overcome the preference for
parental custody.
* * *

McDermott, 385 Md. at 431, 869 A.2d at 816 (quoting In re Guardianship of Sams, 256
N.W.2d 570, 573 (Iowa 1977) (emphasis added) (quotation marks omitted). Thus, while
the Grandparents have taken an active role in caring and providing for the Child since his
birth and provided assistance to Petitioner in parenting the Child, we conclude sufficient
evidence was presented indicating that Petitioner has remained active in the care and
custody of the Child refuting the hearing judge’s findings regarding the second Hoffman
factor.
102
exposing the Child to new activities. We will also defer to the hearing judge’s finding that

there is no “intensity and genuineness” on Petitioner’s part in having custody of the Child.

As we noted, supra, a hearing court retains broad discretion in custody determinations

because the hearing judge is in the unique position of seeing the witnesses and parties and

hearing the testimony in a live setting, in contrast to the appellate court, which only has a

cold record before it. See In re Yve S., 373 Md. at 586, 819 A.2d at 1051 (citations omitted).

We conclude that the hearing judge erred in finding that if the Child remained in the

custody of Petitioner, then he would certainly fail and be in crisis, and possibly expelled

from his school. We acknowledge that the Child’s negative behavior began at the end of

the kindergarten school year and his behavioral problems continued to escalate to the point

that the school referred him to the Crisis Center for an assessment on September 4, 2014.

There was ample evidence in the record reflecting that Petitioner was responsive to these

behavioral outbursts and was actively working with the school to help address the Child’s

problems – enrolling him in the Linkages to Learning program, exploring the possibility

of getting an IEP put into place, and searching for an appropriate therapist for the Child.

Evidence presented by Petitioner’s therapist also indicated that Petitioner was seeking

advice on how to become a more effective parent to the Child and corroborated Petitioner’s

efforts in locating an appropriate therapist for the Child. We also note that, rather than

being on the brink of expelling the Child, the school was actively working with Petitioner

to determine the best course of action for addressing the Child’s behavior. The school

principal testified that they had recently developed a behavior contract – the first step in

assessing the Child’s needs. Thus, while the evidence reflects that at the time of the custody

103
hearing the Child was unstable and was in crisis, there was also ample evidence in the

record indicating that Petitioner was attempting to seek ways – albeit imperfectly – to

address his behavioral difficulties and provide stability.

In sum, we conclude that the hearing judge erred in applying the first, second, and

seventh Hoffman factors and he erred in failing to make substantive factual findings

regarding the third and fourth Hoffman factors. Accordingly, we hold that the hearing judge

abused his discretion in finding that exceptional circumstances existed in this case.

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. We note that in her brief, Petitioner

requests that we grant her a recoupment of the child support payments she has paid to the

Grandparents in the amount of $35,000 because they were made to an unconstitutional

order. We decline consideration of the recoupment issue because we conclude the issue

requires additional fact-finding by the circuit court to determine whether Petitioner is

entitled to recoupment of the child support she has paid to the Grandparents to-date and, if

so, the amount that Petitioner is entitled to recoup. Accordingly, we remand this case to

104
the circuit court for further proceedings regarding whether Petitioner is entitled to

recoupment of the child support payments she has made to the Grandparents to-date.

CONCLUSION

In summary, we hold a third-party may intervene in a custody action between two

parents because Maryland Rule 2-214 allows a person “to intervene in an action when the

person’s claim or defense has a question of law or fact in common with the action.”

Maryland Rule 2-214(b)(1). We also hold that, because a third-party may not obtain

custody of a child over the child’s biological parents unless the third-party can demonstrate

that the parents are either unfit or that exceptional circumstances exist that may be

detrimental to the child, the third-party seeking to intervene in a custody action must make

a prima facie showing that the parents are either unfit or that exceptional circumstances

exist in their pleading. See McDermott, 385 Md. at 375, 869 A.2d at 783. In the case at

bar, the circuit court did not err in allowing the Grandparents to intervene in the custody

action between Petitioner and Father because the Grandparents alleged sufficient facts in

their motion to make a prima facie showing that Petitioner and Father were unfit and that

exceptional circumstances may have existed in this case.

We also hold that in determining whether a parent is unfit – sufficient to overcome

the presumption favoring parental custody in a third-party custody dispute – the court may

consider the following factors, whether: (1) the parent has neglected the child by

manifesting such indifference to the child’s welfare that it reflects a lack of intent or an

inability to discharge his or her parental duties; (2) the parent has abandoned the child; (3)

there is evidence that the parent inflicted or allowed another person to inflict physical or

105
mental injury on the child, including, but not limited to physical, sexual, or emotional

abuse; (4) the parent suffers from an emotional or mental illness that has a detrimental

impact on the parent’s ability to care and provide for the child; (5) the parent otherwise

demonstrates a renunciation of his or her duties to care and provide for the child; and (6)

the parent has engaged in behavior or conduct that is detrimental to the child’s welfare.

We concluded that in the case at bar that, although several of the hearing judge’s findings

that served as the basis for his conclusion that the mother was unfit implicated several of

the factors above, because the majority of the hearing judge’s findings were not supported

by the record and were, therefore, erroneous, the hearing judge abused his discretion in

finding that Petitioner was an unfit parent.

We also conclude that the circuit court erred in applying the Hoffman factor test to

the facts in this case. See Hoffman, 280 Md. at 191, 372 A.2d at 593. The hearing judge

erred in finding that the “length of time” the child at issue “had been away from” Petitioner

was “whenever [Petitioner and Father] were going to do some tripping[]” because the first

Hoffman factor only applies to circumstances where a biological parent has given

constructive custody of the child to a third-party over a long period of time, and ample

evidence was presented in this case reflecting Petitioner has been an active custodian of

the child since he was born. The hearing judge also erred in concluding the Grandparents

had assumed care of the child “from the time of [his] birth[]” because it ignored the facts

presented at the custody hearing reflecting that Petitioner has been continuously and

actively involved in the child’s care since he was born. The hearing judge also erred in

drawing the conclusion that if the child remained in Petitioner’s custody he would likely

106
fail or continue to be in crisis because ample testimony presented at the custody hearing

indicated Petitioner was responsive to the child’s behavioral difficulties and was actively

working with both the child’s school and her own therapist to identify ways to help the

child with his behavioral issues. The hearing judge also erred in failing to make substantive

factual findings regarding the third Hoffman factor, which considers the “possible

emotional effect on the child of a change of custody,” and the fourth Hoffman factor, which

considers the “period of time which elapsed before the parent sought to reclaim the child[.]”

Hoffman, 280 Md. at 191, 372 A.2d at 593. Accordingly, 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.

We also hold that because the circuit court abused its discretion in granting custody

of the Child to the Grandparents, the circuit court also erred in ordering Petitioner to pay

child support to the Grandparents.

JUDGMENT OF THE COURT OF
SPECIAL APPEALS IS REVERSED WITH
DIRECTIONS TO REVERSE THE
JUDGMENT OF THE CIRCUIT COURT
FOR MONTGOMERY COUNTY. COSTS
TO BE PAID BY RESPONDENT
GRANDPARENTS.

Judge Watts joins in judgment only.

107
Circuit Court for Montgomery County
Case No. 112675-FL
Argued: June 2, 2017 IN THE COURT OF APPEALS

OF MARYLAND

No. 97

September Term, 2016

__________________________________

NATASHA BURAK
v.
MARK BURAK, et al.
__________________________________

Barbera, C.J.,
Greene,
Adkins,
McDonald,
Watts,
Hotten,
Getty,

JJ.
__________________________________

Dissenting Opinion by Getty, J., which
McDonald, J., joins.
__________________________________

Filed: August 29, 2017
 Respectfully, I dissent.

I agree with the Majority that the circuit court did not err in granting the

Grandparents’ motion for permissive intervention. However, I strongly disagree with the

Majority’s holding that the trial court abused its discretion in finding that the biological

parents were unfit and exceptional circumstances justified granting custody to the

Grandparents.

Initially, the Petitioner, Ms. Burak, has failed to properly challenge the trial court’s

finding of unfitness before this Court. As the Majority concedes, Ms. Burak, “did not

independently appeal the unfitness issue decided by the Court of Special Appeals to this

Court” in her petition for a writ of certiorari. Majority Slip Op. at 57. For that reason alone

this Court should decline to consider her challenge to the trial court’s custody

determination.

Instead, the Majority excuses Ms. Burak’s failure to properly raise the issue of

unfitness on that grounds that the issue was raised and decided by both the trial court and

the Court of Special Appeals, that Ms. Burak “incorporated the argument into her argument

regarding permissive intervention[,]” and that both parties argued the issue in oral

arguments before this Court. Id. In other words, the Majority suggests that when a party

has failed to raise an issue in a petition for a writ of certiorari, the party can easily remedy

that error by raising the issue in her brief to this Court or at oral argument before this Court.

That is incorrect.
 Maryland Rule 8-131(b) provides, in pertinent part,

(1) Prior Appellate Decision. Unless otherwise provided by the order
granting the writ of certiorari, in reviewing a decision rendered by the Court
of Special Appeals or by a circuit court acting in an appellate capacity, the
Court of Appeals ordinarily will consider only an issue that has been raised
in the petition for certiorari or any cross-petition and that has been preserved
for review by the Court of Appeals. . . .

Thus, when a party fails to raise an issue in a petition for a writ of certiorari, this Court

“ordinarily” will not consider it, regardless of whether it is later raised in a brief or at oral

argument. As the use of the word “ordinarily” implies, this Court has the authority to

decide issues not properly raised in a petition for a writ of certiorari. However, the Court

has consistently held that it should exercise that authority rarely, only when there is a

compelling reason of public policy or other justification to consider the issue. See Wynn

v. State, 351 Md. 307, 322-23 (1998) (noting that the Court has not treated Rule 8-131(b)

as “granting a general discretion to reach an issue whenever the Court so desires in the

interests of ‘fairness[,]’” and that “‘exceptions’ to the principle embodied in Rule 8-131(b)

are limited to ‘extraordinary circumstances’”); see also Mazor v. State Dep’t of Corr., 279

Md. 355, 371 n.8 (1977).

Here, there is no compelling reason to reach the unfitness claim. In Ross v. Hoffman,

the Court set forth a clear standard for third-party custody claims, namely that there is a

presumption that the child’s best interest is to remain in the custody of a biological parent

that must be overcome by a showing of unfitness or “exceptional circumstances as make

such custody detrimental to the best interest of the child.” 280 Md. 172, 178-79 (1977).

The Court recently affirmed the propriety of that standard in McDermott v. Dougherty, an

2
opinion that engaged in an exhaustive analysis of out-of-state cases applying the unfitness

and exceptional circumstances standards. 385 Md. 320, 357-418 (2005). The Court

expanded the use of that test to third-party visitation cases in Koshko v. Haining, 398 Md.

404, 441 (2007). And, the Court has clarified that in a custody case, “unfitness means

unfitness to have custody of the child, not an unfitness to remain the child’s parent.” In re

Adoption/Guardianship of Rashawn H., 402 Md. 477, 498 (2007). Thus, this Court has

already set forth a clear standard for courts to apply in third-party custody cases. To the

extent that trial courts may desire additional guidance as to whether a particular parent is

unfit, they may draw upon cases in out-of-state jurisdictions as persuasive authority.

Further, as clarified in Hoffman, a trial court need find only unfitness or exceptional

circumstances in order to grant a third-party custody claim. 280 Md. at 178-79. Here, the

trial court found both unfitness and exceptional circumstances, but Ms. Burak has failed to

properly raise a challenge to the trial court’s unfitness finding. Consequently, this Court

also need not address Ms. Burak’s claim that the trial court abused its discretion in finding

that exceptional circumstances justified granting custody to the Grandparents. Instead, the

Court should merely affirm the trial court’s grant of custody to the Grandparents on the

basis of the unchallenged finding that Ms. Burak was not a fit parent to have custody of the

child.

The Majority, apparently viewing the unfitness and exceptional circumstances

prongs of the Hoffman test as insufficiently clear, sets forth new standards for both. The

Majority enumerates, for the first time, a list of factors for a trial court to employ when

determining whether a biological parent is unfit in a third-party custody action. Majority

3
Slip Op. at 79-80. And, the Majority transforms the well-settled factor test for exceptional

circumstances stated in Hoffman, 280 Md. at 191, by adding a new requirement that a trial

court must find that a child has been away from his or parents for “a long period of time”

in order to find that exceptional circumstances exist. Majority Slip Op. at 96. The Majority

then concludes, unsurprisingly, that the trial court’s findings did not comport with the new

legal standards that the Majority has just devised.

Initially, I disagree with the details of the new standards set forth by the Majority

and believe that they are likely to prove confusing for trial courts to apply. There is

significant overlap between the new factors that the Majority sets forth for unfitness and

the already-extant factors described in Hoffman for exceptional circumstances. Compare

Majority Slip Op. at 79 (listing, as two of six enumerated factors for unfitness, “(1) the

parent has neglected the child by manifesting such indifference to the child’s welfare that

it reflects a lack of intent or an inability to discharge his or her parental duties” and “(2)

the parent has abandoned the child”) with Hoffman, 280 Md. at 91 (listing, as two of seven

enumerated factors for exceptional circumstances, “the intensity and genuineness of the

parent’s desire to have the child” and “the length of time the child has been away from the

biological parent”). This is particularly true as to the factor of parental abandonment; the

Majority lists abandonment as a factor for unfitness, but also states that “the first Hoffman

factor [for exceptional circumstances, i.e., “the length of time the child has been away from

the biological parent”] seeks to determine whether a biological parent has, in effect,

abandoned his or her child.” See Majority Slip Op. at 79, 96-97.

4
 The newly added overlap between the two standards blurs the lines between

unfitness, which may well be found even when a parent is very involved in a child’s life,

and exceptional circumstances, which generally occurs when a parent has abandoned as

child or otherwise ceded the child’s care and upbringing to a third party. The Majority’s

holding is thus likely to sow confusion as to what is required for a trial court to find

unfitness as opposed to exceptional circumstances. And, the emphasis on abandonment

under both prongs is likely to be applied―improperly―to deny custody to third parties

when those parties have shown significant evidence indicating that the biological parent(s)

is unfit or lacks a genuine desire to have the child, but the parent(s) has not outright

abandoned the child.

The Majority is also unclear as to the mechanics of how, procedurally, a trial court

should apply its new standards. The Majority correctly recognizes that third-party custody

cases like the instant case, brought by the child’s grandparents, are distinct from third-party

guardianship/termination of parental rights (TPR) cases brought by a county Department

of Social Services. In a TPR case, a trial court is required to expressly consider certain

statutorily enumerated factors in determining whether to terminate a parent’s rights to a

child. See Majority Slip Op. at 62-63; Maryland Code, Family Law§ 5-323(d); see also In

re Adoption/Guardianship of Rashawn H., 402 Md. at 501 (“The court’s role in TPR cases

is to give the most careful consideration to the relevant statutory factors, to make specific

findings based on the evidence with respect to each of them, and . . . determine expressly

whether those findings suffice either to show an unfitness on the part of the parent to remain

in a parental relationship with the child or to constitute an exceptional circumstance that

5
would make a continuation of the parental relationship detrimental to the best interest of

the child.”) Consequently, instead of mandatory factors, the Majority lists factors for

unfitness that a trial court “may consider[,]” and states that those factors “are not the

exclusive criteria by which a court must rely to determine whether a parent is unfit[.]”

Majority Slip Op. at 79-80 (emphasis added). However, the Majority also holds that its

enumerated factors should “serve as a guide for the court in making its findings.” Id. at

80. Thus, the Majority’s opinion leaves unclear whether, in a third-party custody action

brought by a private citizen, the trial court must make explicit findings on the record or in

a written opinion as to all of its stated factors for unfitness, as is required in the TPR

context.

Similarly, the Majority has modified the Hoffman factor test for exceptional

circumstances, adding a requirement that “[a trial] court must first determine that the child

at issue has spent a long period of time away from his or her biological parent before

considering the other Hoffman factors.” Id. at 95. But it is unclear from the Majority’s

opinion whether a trial court may find exceptional circumstances merely based on a finding

of abandonment for a “long period of time” or if the court must also go on to make explicit

findings as to the other Hoffman factors.

Furthermore, I strongly disagree with the Majority’s reversal of the trial court’s

decision based on a new, retroactively applied legal standard. This kind of ex post facto

overruling of a trial court’s decision based on entirely new legal criteria is highly improper.

The Grandparents argued their claim for third-party custody, and the trial court conducted

a custody hearing, under the then-current legal standards for unfitness and exceptional

6
circumstances. It is profoundly unfair to the Grandparents to reverse the grant of custody

based on newly devised standards, without affording the Grandparents an opportunity to

make their case under those new standards. And, by applying the new standards to the

facts of the case, this Court usurps the trial court’s role to apply the law to the facts and

make discretionary findings. Thus, at a minimum, if the Majority believes that new legal

standards are necessary, the trial court’s ruling should be vacated, and the case remanded

for that court to hold a third-party custody hearing applying the new standards. See

Thompson v. State, 411 Md. 664, 683, 694 (2009) (holding that the correct legal standard

in a postconviction DNA case where the petitioner requests a new trial is whether there is

a “substantial possibility” that newly discovered evidence would have led to a different

result, and remanding case for the trial court to utilize that standard).

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.

7
 As to unfitness, the Majority holds that because some of the trial court’s factual

findings in support of the unfitness determination “were not supported by the evidence

presented at the hearing” they were erroneous. Majority Slip Op. at 82. The Majority then

proceeds through what is functionally a de novo review of the evidence in the record. The

Majority places different weight on some of that evidence than the trial court did, finds

“very little” evidence to support certain of the trial court’s findings, and finds that other

evidence should be discounted because it was based on testimony of Father and M that the

trial court deemed credible but the Majority does not. Majority Slip Op. at 82-91.

However, as we have repeatedly held, “[i]f there is any competent evidence to

support the factual findings of the trial court, those findings cannot be held to be clearly

erroneous.” Spaw, LLC v. City of Annapolis, 452 Md. 314, 339 (2017) (emphasis added)

(quoting Goff v. State, 387 Md. 327, 338 (2005)). And, in proceeding through the evidence

in the record, the Majority is forced to concede that there was at least some evidence to

support the trial court’s factual findings. Id. at 82-91. Moreover, it is not the function of

an appellate court reviewing for clear error to “substitute [its] judgment for that of the fact

finder, even if [the Court] might have reached a different result.” Nicholson Air Servs.,

Inc. v. Bd. of Cty. Comm’rs, 120 Md. App. 47, 84 (1998). And in reviewing a trial court’s

discretionary finding for clear error, this Court must give “due regard to the opportunity of

the trial court to judge the credibility of the witnesses,” as commanded by Md. Rule

8-131(c). This Court has explained that this deference to a trial court’s credibility

determination carries special force in child custody cases, where a trial judge “sees the

witnesses and the parties, hears the testimony, and has the opportunity to speak with the

8
child; he is in a far better position than is an appellate court, which has only a cold record

before it, to weigh the evidence and determine what disposition will best promote the

welfare of the minor.” In re Yve S., 373 Md. at 586 (quoting Davis v. Davis, 280 Md. 119

(1977)). Thus, rather than engage in an improper weighing of the evidence and credibility

of witnesses, the Court should simply hold that there was some evidence to support the

trial court’s findings and, therefore, those findings were not clearly erroneous.

The Majority also concludes that the trial court abused its discretion in applying the

law to the facts and concluding from its factual findings that Ms. Burak was unfit to retain

custody of the child. Id. at 82, 90. In contrast to the Majority’s view, I agree with the

Court of Special Appeals that there was more than sufficient evidence in the record to

sustain the trial court’s discretionary finding of unfitness:

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.

Burak v. Burak, 231 Md. App. 242, 269 (2016).

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 The Majority similarly misapplies the clearly erroneous and abuse of discretion

standards as to the trial court’s findings regarding exceptional circumstances. The Majority

again takes issue with how the trial court weighed certain evidence as to how long the child

was away from the parents during their frequent episodes of drug use, when the

Grandparents assumed care for the child, and “the stability and certainty as to the child’s

future in the custody of the parent.” Majority Slip Op. at 95-100 (quoting Hoffman, 280

Md. at 91). And, the Majority concludes that the trial court abused its discretion in

determining that exceptional circumstances merited granting custody to the Grandparents.

Id. at 100. I would instead adopt the reasoning of the Court of Special Appeals and hold

that there were more than sufficient facts in evidence to support a finding of exceptional

circumstances under the applicable Hoffman factors:

The record also supports the court’s finding of exceptional circumstances.
The evidence and testimony demonstrated that Child had been exposed for
years to a volatile and unhealthy home environment; the court cited “the
drugs, the sex, the craziness in the house, the different relationships, the lack
of interest in the mother, the mother lying—all of those things are factors for
both [unfitness and exceptional circumstances].” The Child spent long
periods of time away from Husband and Wife, especially when Husband and
Wife used drugs. The court found that the Grandparents had provided a great
deal of care for the Child, and that “the age of the child when the care was
assumed by the third party . . . was from the time of birth.” The court
considered the possible emotional effect on the child in a change of custody,
the period of time that elapsed before the parents sought to reclaim him, the
nature and strength of the ties between Child and the Grandparents, and
found all factors to strongly favor custody by the Grandparents. The court
did not find Wife’s stated desire for custody to be genuine, and that
Child “would continue with instability and he would certainly fail” in the
custody of his parents.

Burak, 231 Md. App. at 269-70.

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 In summary, this Court should hold that Ms. Burak has failed to properly preserve

her claim that the trial court erred in finding her to be unfit to have custody of her child

because she did not raise it in her petition for a writ of certiorari. And, because a third-

party custody claim requires only a finding of unfitness or exceptional circumstances, it is

not necessary for the Court to reach Ms. Burak’s claim that the trial court abused its

discretion as to its finding of exceptional circumstances. Instead, the Court should sustain

the trial court’s custody decision on the unchallenged ground of unfitness.

Moreover, the overlap between the new factors set forth by the Majority for

unfitness and the Hoffman exceptional circumstances factors is likely to prove confusing.

The Majority has also failed to clarify whether it intends for trial courts to explicitly

consider all of the factors it has enumerated. Further, even if the Court feels it necessary

to supply new standards for unfitness and exceptional circumstances, it should vacate and

remand the case to afford the Grandparents the opportunity to argue their case under the

newly announced standards. Finally, even if it were appropriate to review the trial court’s

findings under the newly announced standards, the trial court did not abuse its discretion

in finding that Ms. Burak was an unfit parent or in finding that exceptional circumstances

merited granting custody to the Grandparents.1 Therefore, I respectfully dissent.

Judge McDonald has authorized me to state that he joins this dissent.

1
The Majority also concludes that because of its holding that the circuit court abused
its discretion in granting custody of the Child to the Grandparents, “the circuit court erred
in ordering Petitioner to pay child support to the Grandparents.” Majority Slip Op. at 100.
I would instead affirm the Court of Special Appeals’ holding that affirmed the trial court’s
child support rulings. See Burak, 231 Md. App. at 280-84.
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