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Azizova v. Suleymanov

Court of Special Appeals of Maryland

November 21, 2019


          Circuit Court for Washington County Case No.: 21-C-17-058844

          Leahy, Wells, Battaglia, Lynne, A. (Senior Judge, Specially Assigned), JJ.


          BATTAGLIA, J.

         This appeal stems from an order of a trial judge sitting in the Circuit Court for Washington County, who awarded appellee, Muzaffar Suleymanov, primary physical custody of the child he fathered with appellant, Natella Azizova, who asks us to reverse this determination.[1]

         For the reasons that follow, we shall hold that the trial judge abused her discretion in awarding Mr. Suleymanov primary physical custody of the child and shall vacate and remand the matter for a new hearing.


         It is well established that custody determinations are to be made by a careful examination of the specific facts of each individual case; the "fact finder is called upon to evaluate the child's life chances in each of the homes competing for custody and then to predict with whom the child will be better off in the future." Montgomery Cnty. v. Sanders, 38 Md.App. 406, 419 (1977). Courts possess wide discretion in determining questions concerning the welfare of children, the authority of which "clearly empowers courts applying the best interests standard to consider any evidence which bears on a child's physical or emotional well-being." Bienenfeld v. Bennett-White, 91 Md.App. 488, 503- 04, cert. denied, 327 Md. 625 (1992). Although courts are not limited to a list of factors in applying the best interest standard in each individual case, the cases of the Court of Appeals and of this Court, beginning with Montgomery County Department of Social Services v. Sanders, 38 Md.App. 406 (1977) and Taylor v. Taylor, 306 Md. 290 (1986), have set forth a non-exhaustive delineation of factors that a court must consider when making custody determinations, which have been consolidated in Fader's Maryland Family Law, a veritable compendium of domestic relations law:

(1) The fitness of the parents;
(2) The character and reputation of the parties;
(3) The requests of each parent and the sincerity of the requests;
(4) Any agreements between the parties;
(5) Willingness of the parents to share custody;
(6) Each parent's ability to maintain the child's relationships with the other parent, siblings, relatives, and any other person who may psychologically affect the child's best interest;
(7) The age and number of children each parent has in the household;
(8) The preference of the child, when the child is of sufficient age and capacity to form a rational judgment;
(9) The capacity of the parents to communicate and to reach shared decisions affecting the child's welfare;
(10) The geographic proximity of the parents' residences and opportunities for time with each parent;
(11) The ability of each parent to maintain a stable and appropriate home for the child;
(12) Financial status of the parents;
(13) The demands of parental employment and opportunities for time with the child;
(14) The age, health, and sex of the child;
(15) The relationship established between the child and each parent;
(16) The length of the separation of the parents;
(17) Whether there was a prior voluntary abandonment or surrender of custody of the child;
(18) The potential disruption of the child's social and school life;
(19) Any impact on state or federal assistance;
(20) The benefit a parent may receive from an award of joint physical custody, and how that will enable the parent to bestow more benefit upon the child;
(21) Any other consideration the court determines is relevant to the best interest of the child.

         Cynthia Callahan & Thomas C. Ries, Fader's Maryland Family Law § 5-3(a), at 5-9 to 5-11 (6th ed. 2016) (footnotes omitted). Fader's Maryland Family Law also delineates other factors that courts are encouraged to consider in custody determinations:

(1) the ability of each of the parties to meet the child's developmental needs, including ensuring physical safety; supporting emotional security and positive self-image; promoting interpersonal skills; and promoting intellectual and cognitive growth;
(2) the ability of each party to meet the child's needs regarding, inter alia, education, socialization, culture and religion, and mental and physical health;
(3) the ability of each party to consider and act on the needs of the child, as opposed to the needs or desires of the party, and protect the child from the adverse effects of any conflict between the parties;
(4) the history of any efforts by one or the other parent to alienate or interfere with the child's relationship with the other parent;
(5) any evidence of exposure of the child to domestic violence and by whom;
(6) the parental responsibilities and the particular parenting tasks customarily performed by each party, including tasks and responsibilities performed before the initiation of litigation, tasks and responsibilities performed during the pending litigation, tasks and responsibilities performed after the issuance of orders of court, and the extent to which the tasks have or will be undertaken by third parties;
(7) the ability of each party to co-parent the child without disruption to the child's social and school life;
(8) the extent to which either party has initiated or engaged in frivolous or vexatious litigation, as defined in the Maryland Rules; and
(9) the child's possible susceptibility to manipulation by a party or by others in terms of preferences stated by the child.

Id. at § 5-3(b), at 5-11 to 5-12 (footnote omitted).

         Judicial Bias

         Unequivocally, the test with respect to custody determinations begins and ends with what is in the best interest of the child. Boswell v. Boswell, 352 Md. 204, 236 (1998). In between, a trial judge must determine whether a particular issue related to a parent presents harm to the health and welfare of a child or affects the child's development, and whether there is a nexus between the parental issue and any adverse impact on the child's overall well-being. Id. at 235-38; see also Whaley v. Whaley, 399 N.E.2d 1270 (Ohio Ct. App. 1978).

         The Court of Appeals and this Court have time and time again affirmed custody determinations where the trial judge embarked upon a thorough, thoughtful and well-reasoned analysis congruent with the various custody factors. See Santo v. Santo, 448 Md. 620, 646 (2016) (The decision of the circuit court was "predicated on its thorough review of the Taylor factors, deliberation over custody award options, sober appreciation of the difficulties before it, and use of strict rules including tie-breaking provisions to account for the parties' inability to communicate" and "was rational and guided by established principles of Maryland law. No abuse of discretion occurred in this case."); Reichert v. Hornbeck, 210 Md.App. 282, 308 (2013) ("[T]he court 'articulated fully the reasons that support[ed the] conclusion' that joint physical and legal custody was appropriate through an extensive and thoughtful consideration of all suggested factors."); Hughes v. Hughes, 80 Md.App. 216, 234 n.5 (1989) (stating that the trial judge's decision to deny father's request for joint custody consisted of "thorough and well reasoned analysis").

         In situations, however, where a trial judge, while assessing a particular factor, has been guided by their personal beliefs in fashioning an outcome rather than by the evidence, we and our colleagues on the Court of Appeals have vacated that decision.

         In 1998, the Court of Appeals, in Boswell v. Boswell, 352 Md. 204 (1998), for example, reaffirmed the notion that a trial judge, applying the best interest standard to a visitation determination, must not let their personal beliefs or biases pertaining to a parent's lifestyle choice interfere in custodial decision-making, but rather, should only consider how such a choice adversely impacts the best interest of a child. In Boswell, the trial judge, without request from either party, placed limitations on the children's visitation with their father based upon his cohabitating with a same-sex partner, reasoning:

[W]here there is a . . . paramour involved. . . . I have often, time and time again, restricted visitation. I think that's only appropriate. *** [I will hold] down the . . . visitations of both the weekend and Wednesday and [restrict] during this period any overnight visitation. Clearly the Court is convinced that . . . there is a relationship, at least up until this time, and no concern to change before this time, that [the father] is sleeping with . . . another person without the cloak of a marital relationship.
[T]here will be no visitation in the home where there is . . . [the father's partner]. Or any other situation that goes to a relationship that isn't condoned.

Id. at 212 (emphasis removed) (alterations in original). In addressing the father, the trial judge continued:

[T]here may come a time when you would elect to have someone else stay at the home with you, perhaps a female companion or another male companion, but my order is that the children are not to visit you under those circumstances. So if it means taking them to some other place, some neutral place, then that's the Order of this Court, and that's a strict order [until] it is clear to me that we'll have no situation where you have a live-in companion.

Id. (emphasis removed). The visitation order entered by the trial judge prohibited any overnight visitation and visitation with the children in the presence of "anyone having homosexual tendencies or such persuasions, male or female, or with anyone that the father may be living with in a non-marital relationship." Id. at 211. We, thereafter, vacated the decision of the circuit court based upon the judge's failure to make any factual findings to support its assumption that the children would be harmed by visiting their father "in the company of homosexuals." Boswell v. Boswell, 118 Md.App. 1, 34 (1997), aff'd, 352 Md. 204 (1998).

         The Court of Appeals affirmed our decision and expressed its disapproval of the fact that the trial court had "acted on its own initiative, seemingly influenced by its own biases and belief that" the father's non-marital relationship with his same-sex partner was "'inappropriate.'" Boswell, 352 Md. at 238. The Court explained its reasoning:

In all family law disputes involving children, the best interests of the child standard is always the starting-and ending-point. We see no reason to deviate from this standard here. When we narrow the focus to proceedings involving proposed visitation restrictions in the presence of non-marital partners, courts also are to examine whether the child's health and welfare is being harmed. Once a finding of adverse impact on the child is made, the trial court must then find a nexus between the child's emotional and/or physical harm and the contact with the non-marital partner. If no clear, direct connection is found, then the non-custodial parent's visitation rights cannot be restricted.
We want to emphasize that the above formulation does not require a court to sit idly by and wait until a child is actually harmed by liberal unrestricted visitation. If there is sound evidence demonstrating that a child is likely to be harmed down the road, but there is no present concrete finding of harm, a court may still consider a child's future best interests and restrict visitation. The need for a factual finding of harm to the child requires that the court focus on evidence-based factors and not on stereotypical presumptions of future harm.
Therefore, before a trial court restricts the non-custodial parent's visitation, it must make specific factual findings based on sound evidence in the record. If the trial court does not make these factual findings, instead basing its ruling on personal bias or stereotypical beliefs, then such findings may be clearly erroneous and the order may be reversed. In addition, if a trial court relies on abstract presumptions, rather than sound principles of law, an abuse of discretion may be found.

Id. at 236-37. See also North v. North, 102 Md.App. 1 (1994) (holding that trial court abused its discretion in restricting HIV-positive, homosexual parent's visitation rights to weekend daylight hours to prevent him from exposing children to his lifestyle); Bienenfeld, 91 Md.App. at 508 (holding that a court in a custody proceeding may only consider evidence of religious views or practices of the party seeking custody to the extent that such view or practices bear upon the physical or emotional welfare of the child). But see Levitsky v. Levitsky, 231 Md. 388, 400 (1963) (remanding decision of circuit court granting mother custody of children, concluding that her religious views might bar her from having custody of the children where, based upon her religious beliefs, she refused to permit her son to have blood transfusions which medical professionals deemed essential to save his life).

         Other state courts also have recognized that a judge's personal beliefs or biases have no place in a custody decision, absent a showing that the lifestyle choice of a parent had, or will have, an adverse impact on the child's interests. The intermediate appellate court of Ohio, in Whaley v. Whaley, 399 N.E.2d 1270 (Ohio Ct. App. 1978), held that a change in custody from the mother to the father was improper, where it was ordered to punish the mother for conduct the court considered morally wrong, including her relationship with a married man who was separated from his wife, despite the fact that the record was devoid of any showing of the need for such a change. The court explained:

The judge's decision demonstrates that the change in custody was ordered to punish Mrs. Whaley for conduct the court considered morally wrong.
This is not the standard in the State of Ohio. The state is concerned with the child's welfare. A child must not be used to punish or reward conduct a particular judge might condemn or condone.
The [standard] that immoral conduct must be shown to have a direct or probable adverse impact on the welfare of the child in order to justify a change of custody, we believe to be the rule in Ohio. . . . While a court should not inquire into competing moral value systems, it can recognize that such moral standards do exist, and that children are harmed by being raised in immoral surroundings. [Under a direct adverse impact] standard the court looks not to moral systems, but to the interests of the child. A court need not classify certain conduct as a "wicked sin" or "mere indiscretion"; rather, it looks only to the effect, if any, the conduct has on the child.

Id. at 1273-75 (citations omitted).

         The Ohio Court of Appeals also, in Rowe v. Franklin, 663 N.E.2d 955, 956-57 (Ohio Ct. App.), cert. denied, 74 Ohio St.3d 1464 (1995), utilizing a standard requiring a nexus between the conduct of a parent and a deleterious effect on the child, abrogated a trial court's judgment which awarded the father physical custody of a child, a determination that the child's mother sought to reverse. In Rowe, the mother sought to permanently relocate her son from Ohio to Kentucky, where the two had temporarily resided, based upon her position as a part-time pilot with the United States Army. Id. at 956. While in Kentucky, the mother had developed a relationship with a man who was married but separated from his wife, whereupon she became pregnant, thereafter electing to enroll in law school. Id. In making his factual findings pursuant to the custody factors relevant in Ohio, similar to those in ...

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