Burrows v. Sanders

635 A.2d 82, 99 Md. App. 69, 1994 Md. App. LEXIS 16
CourtCourt of Special Appeals of Maryland
DecidedJanuary 7, 1994
Docket676, September Term, 1993
StatusPublished
Cited by7 cases

This text of 635 A.2d 82 (Burrows v. Sanders) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Burrows v. Sanders, 635 A.2d 82, 99 Md. App. 69, 1994 Md. App. LEXIS 16 (Md. Ct. App. 1994).

Opinion

GARRITY, Judge.

This appeal questions the chancellor’s custody award of a seven-year-old boy to his paternal grandmother and paternal step-grandfather, rather than to his mother.

FACTS

Tommy was born September 12, 1985 to Wendy Lee Buerkle (now Wendy Burrows), appellant, and Thomas Duff, Sr. Ms. Buerkle was approximately sixteen years old at Tommy’s birth. Thomas Duff, Sr. is not a party to these custody proceedings. From the time of his birth until July of 1989, Tommy, his mother, and sometimes his father stayed in the home of Mr. Duffs mother, Emma Sanders, and her husband, Ruben Clifton Sanders, appellees. Much of the responsibility for the child’s physical and emotional care was assumed by the Sanders family. In July of 1989, when Tommy was three, Ms. Burrows left the Sanders’ household and moved in with Mr. Burrows, whom she subsequently married. Tommy remained with the Sanders. Three months after her departure, Ms. Burrows began to see Tommy on a regular basis. Two years after her departure, Ms. Burrows attempted to reestablish custody. At the time the custody hearing was conducted on February 1, 1993, Tommy remained in the physical custody of the Sanders, but Ms. Burrows had Tommy with her every *73 other weekend as she had for the past three and one-half years. The Circuit Court for Cecil County (Cole, J.) awarded custody to the grandparents and awarded Ms. Burrows visitation three weekends a month and two months in the summer, plus holidays. Ms. Burrows appeals, raising three issues:

1. Whether the chancellor erred in admitting the deposition testimony of Dr. Ruttenberg.
2. Whether the facts supported the finding of exceptional circumstances.
3. Whether the chancellor’s award of custody to the grandparents was an abuse of discretion.

DISCUSSION OF LAW

Admission of the Deposition Testimony of Dr. Ruttenberg

Appellant objects to the admission of testimony of Dr. Ruttenberg, a psychiatrist. The objection was that he had only seen the child for forty-five minutes and the grandparents for fifteen minutes and, therefore, had an inadequate foundation to form an opinion regarding the best interest of the child. The chancellor made clear, however, that the determination of what was in the best interest of the child was the court’s decision, not the expert’s. Further, the deposition testimony was offered with the limitation that the expert had spent a short period of time with the child.

Upon ruling, the chancellor acknowledged that the psychiatrist only saw the child for forty-five minutes but that “he picked up some things that the evidence bears out.... I am not saying he’s in a position to say who has the best interest of the child ...” After reviewing a few of the doctor’s findings, the chancellor remarked that “I certainly find that also and these are things that the evidence bears out, so the doctor is right on some of these things.” All this was preceded by five pages of oral opinion containing findings made by the chancellor totally independent from the doctor’s deposition.

Although forty-five minutes may be a short period of time in which to interview a child in a custody case, it is *74 beyond the capability of this, or any court, to establish the precise amount of time necessary for an expert to gather sufficient facts to form an opinion. The doctor interviewed the child and, therefore, had some factual basis for his opinions.

Expert testimony is admissible if it will aid the fact finder and will only be grounds for reversal if it is founded on an error of law or some serious mistake or if the trial court clearly abused its discretion. Radman v. Harold, 279 Md. 167, 173, 367 A.2d 472 (1977). We hold that the chancellor did not abuse his discretion in admitting the deposition of Dr. Ruttenberg into evidence.

The Chancellor’s Award of Custody to the Grandparents

As the second and third issues are so closely related, we will address them as one issue, namely, did the chancellor properly support his finding of exceptional circumstances when awarding custody to the grandparents. Our standard of review as to factual findings is the “clearly erroneous” rule, and the chancellor’s decision as to custody will not be disturbed absent a clear abuse of discretion. Ross v. Hoffman, 280 Md. 172, 185-86, 372 A.2d 582 (1977).

In custody proceedings, there is a long standing rebut-table preference of natural parents over third parties. Ross v. Pick, 199 Md. 341, 351, 86 A.2d 463 (1952). Generally, the presumption is that it is in the best interest of children to be in the custody of their natural parents vis-á-vis a third party. Hoffman, 280 Md. at 178, 372 A.2d 582. The presumption may be rebutted, however, by sufficient evidence to support a finding of either (1) parental unfitness or (2) the existence of exceptional circumstances, such that parental custody would be detrimental to the best interest of the child. Id. Chancellor Cole found that neither party was an unfit custodian and that this case would turn on whether there were extraordinary circumstances that would rebut the presumption that the mother should be preferred as custodian.

*75 In determining the best interest of the child, the chancellor considers the child’s training, development, morals, and happiness. Pick, 199 Md. at 351, 86 A.2d 463. The child’s own wishes may be consulted and-given weight if the child is of sufficient age and capacity to form a rational judgment, and the child’s desire should be given special consideration where the parents have voluntarily allowed him to live in the family of others for a considerable length of time. Id., 199 Md. at 353-54, 86 A.2d 463.

We have long supported decisions that a third party may be granted custody over the natural parent if that is in the child’s best interest. Hoffman, 280 Md. at 178, 372 A.2d 582 (physical custodian of child granted custody after caring for the child for approximately eight years); Trenton v. Christ, 216 Md. 418, 420-23, 140 A.2d 660 (1958) (while father was not unfit, ten-year-old daughter preferred to stay with grandparents in Maryland, with whom she had lived for the past six years, rather than move to Wisconsin); Pick, 199 Md. at 351-52, 86 A.2d 463 (reversed award of custody to mother of eleven-year-old child who had resided with third party for ten years because the mother had abandoned the child); Dietrich v. Anderson, 185 Md.

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Bluebook (online)
635 A.2d 82, 99 Md. App. 69, 1994 Md. App. LEXIS 16, Counsel Stack Legal Research, https://law.counselstack.com/opinion/burrows-v-sanders-mdctspecapp-1994.