Gizzo v. Gerstman

226 A.3d 372, 245 Md. App. 168

• Court: Court of Special Appeals of Maryland
• Decided: April 1, 2020
• Docket: 3236/18
• Status: Published

Opinion

Frank Gerard Gizzo v. Kaycee Lauren Gerstman, No. 3236, Sept. Term 2018. Opinion by Arthur, J.

CUSTODY AND VISITATION—EVIDENCE OF PRIOR ABUSE OR NEGLECT

In this custody dispute between a mother and father, the court awarded sole legal custody and primary physical custody of a four-year-old child to the child’s mother, even though the mother had been found guilty of assaulting the father and neglecting the child three years earlier. Under the circumstances, the custody decision was not an abuse of discretion.

In custody and visitation cases, courts must give special consideration to evidence that a party previously committed abuse or neglect. Section 9-101 of the Family Law Article dictates that, if there are reasonable grounds to believe that a party abused or neglected a child, the court must determine whether abuse or neglect is likely to occur if the court grants custody or visitation rights to that party. Unless the court specifically finds that there is no likelihood of further child abuse or neglect by that party, the court may not grant custody or unsupervised visitation rights to that party. Section 9-101.1 further requires the court to consider evidence of abuse by a party against certain family members and household members. If the court finds that the party committed such abuse, the court must make arrangements for custody and visitation that best protect the child and the victim of the abuse.

In this case, the court found, pursuant to § 9-101, that there were reasonable grounds to believe that the mother had neglected the child, but specifically found that there was no likelihood of further child abuse or neglect by the mother. The court credited testimony that, in the intervening years, the mother worked to overcome mental health challenges and established a new home in which she and her husband were raising their other young children without incident. The court’s determination was neither clearly erroneous nor an abuse of discretion.

In its initial opinion, the court did not expressly discuss § 9-101.1 or the evidence that the mother was found guilty of assaulting the father three years earlier. In a subsequent order denying the father’s motion for an emergency stay, however, the court explained that it had considered the evidence of abuse and determined that the geographical distance between the parents would minimize conflict between them and provide the protection contemplated by § 9-101.1. These statements sufficiently demonstrated that the court had considered the evidence of abuse and exercised its discretion to make appropriate protective arrangements. To the extent that the initial opinion might have fallen short of the requirements of § 9-101.1, the subsequent order addressed any such deficiency. Circuit Court for Baltimore County Case No. 03-C-15-008774 REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 3236

September Term, 2018 ______________________________________

FRANK GERARD GIZZO

v.

KAYCEE LAUREN GERSTMAN

______________________________________

Meredith, Arthur, Gould,

JJ. ______________________________________

Opinion by Arthur, J. ______________________________________

Filed: April 1, 2020

Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.

Suzanne Johnson 2020-07-20 15:19-04:00

Suzanne C. Johnson, Clerk This appeal arises from what the trial judge called “a particularly difficult case”

concerning child custody. Based on two separate incidents that occurred in 2015, the

mother was found guilty of assaulting the father and neglecting their one-year-old child.

The child was placed in the care of his father in Maryland, but the father eventually

decided that the child should reside primarily with the child’s paternal grandparents in

New York. Meanwhile, the mother established a new home and family in California.

In 2019, the Circuit Court for Baltimore County held a two-day trial on the

parents’ competing claims for custody of their four-year-old child. The court found that

the mother had demonstrated her fitness as a parent during the years following her

neglect conviction and that there was no likelihood that the mother would commit further

child abuse or neglect. The court deemed the mother’s request for custody to be more

genuine than the father’s request, in light of his decision that the child should live with

grandparents in another state. The court granted sole legal custody and primary physical

custody of the child to the mother.

The father has appealed. Because we perceive no error or abuse of discretion, we

will uphold the circuit court’s custody determination.

FACTUAL AND PROCEDURAL BACKGROUND

A. Early Relationship Between Father and Mother

Frank Gizzo (“Father”) and Kaycee Gerstman (“Mother”)1 first met in 2013 and

soon began a romantic relationship. At that time, Father was 24 years old and Mother

1 Since the initial filings, Mother has married and changed her last name to Duree. was 20 years old. They lived together for a few months in California before moving to

New York. For a short time, they stayed with Father’s parents in White Plains, until

Father’s father (“Grandfather”)2 decided that he would no longer permit Mother to stay in

that home.

Mother became pregnant sometime in early 2014. During several months of the

pregnancy, Mother lived inside Father’s car while Father continued to live in his parents’

home.3 Mother moved into a homeless shelter during the final months of the pregnancy.

Their son, G., was born in November 2014.

After the birth of G., Grandfather allowed Mother to move back into the White

Plains home. While staying there, Mother had an altercation with Grandfather, in which

she pushed him and kicked him. Soon after that altercation, Mother and Father decided

to move to Maryland.

From March 2015 until August 2015, Father and Mother lived together with G. in

an apartment in Baltimore County. Mother served as G.’s primary caregiver, while

Father supported the family with his salary as a trainee with the Baltimore City Police

Academy. During this time, Mother became pregnant with their second child.

2 This opinion refers to the paternal father as “Grandfather” merely for the sake of convenience. During the first few years of his life, the child spent significant time residing with his paternal grandparents in New York, but he did not reside with his maternal grandparents in California.

According to Mother, she lived in Father’s car for “[a]bout six months.” 3

According to Father, she was “only in [his] car for a couple of months.”

2 B. Demise of the Relationship Between Father and Mother

Father and Mother experienced frequent disagreements throughout their

relationship, but on August 8, 2015, their relationship began to deteriorate rapidly. On

that day, Mother punched Father in the arm while they were attending a “Family Day”

event for members of the Police Academy. Later that day, she slapped him in the face.

Based on those acts, Mother was charged with two counts of second-degree

assault of Father. Separately, Father filed a civil petition for protection from domestic

violence. Mother was arrested. Immediately after her release, she applied for criminal

charges against Father and filed her own petition for a protective order, alleging that he

had assaulted her during the Family Day incident. Before the court decided whether to

issue a final protective order against either party, they mutually agreed to dismiss their

respective petitions.

Mother left the family apartment with G. and moved into a shelter operated by the

House of Ruth. Under a consent agreement, G. remained in the primary care of Mother,

while Father had regular visits with G. on every other weekend and on weekday

evenings.

On October 19, 2015, Mother received probation before judgment as to one count

of second-degree assault of Father.4 The court imposed supervised probation, with the

condition that she would complete a domestic violence education program with the

4 A sentence of probation before judgment requires a determination of the defendant’s guilt, but the defendant “is not convicted of the crime for which he [or she] has been found guilty, unless the [defendant] violates the probation order and a court enters a judgment on the finding of guilt.” Myers v. State, 303 Md. 639, 647-48 (1985).

3 House of Ruth. Ultimately, Mother did not fulfill that condition.5

With financial assistance through the House of Ruth, Mother moved with G. into a

townhouse in West Baltimore, along with a few women she had met during her stay at

the shelter.

C. Circumstances Under Which Father Assumed Primary Custody

This case began on August 17, 2015, when Father filed a complaint in the Circuit

Court for Baltimore County, seeking sole legal custody and sole physical custody of G.

Mother counterclaimed, seeking sole legal custody and primary physical custody of G.

The custody case was stayed, however, after G. became the focus of a child abuse

investigation and juvenile court proceedings.

On December 12, 2015, the Baltimore City Department of Social Services and the

Baltimore City Police Department received reports of suspected child abuse at Mother’s

residence. Officers observed that G. had bruises on his face and a bloodshot eye.

Officers transported G. to a hospital, where the hospital staff discovered additional

bruises on G.’s back. Mother claimed that G. fell off her bed and onto the floor after she

had left G. with a roommate so that she could shower in another room. Mother admitted

that she did not seek medical attention until after the police arrived.

Suspecting possible abuse, the Baltimore City Department of Social Services

placed G. in emergency shelter care and filed a petition alleging that G. was a child in

need of assistance. G. spent several weeks in a foster home before the juvenile court

5 Mother claims that she was ineligible to enroll in the program.

4 placed G. in his Father’s care. Grandfather temporarily moved into Father’s Maryland

home to help Father care for G.

For her role in causing G.’s injuries, Mother was charged with child abuse,

second-degree assault, reckless endangerment, and neglect of a minor. Mother initially

spent 30 days in jail in connection with those charges. In March 2016, Mother entered a

guilty plea to the charge of neglect of a minor, and the State declined to pursue the

remaining charges. Mother received supervised probation, with the condition that she

would stay for one year at Chrysalis House, a treatment center for pregnant women and

women with young children. Mother also spent another 26 days in jail for violating her

previous probation.

During the year after Father filed his complaint for custody of G., Mother made

several accusations of abuse by Father, none of which have ever been substantiated. In

September 2015, a court denied Mother’s petition for a protective order because the

hearing judge did not credit her testimony that Father assaulted her. In December 2015,

Mother petitioned for a protective order based on allegations that G. suffered injuries

during his visits with Father, but she dismissed her petition and later acknowledged that

her allegations were untrue. At the juvenile court adjudicatory hearing in March 2016,

Mother testified that Father raped her, but she later admitted that her testimony was

untrue. According to Father, some of Mother’s accusations triggered internal

investigations by the police department and caused him to be placed on administrative

leave for extended periods of time, which impeded his career progress and limited his

opportunities to earn overtime wages.

5 D. Other Significant Developments Before the Custody Trial

Mother gave birth to the parties’ daughter (G.’s younger sister) in April 2016.

Shortly thereafter, Father petitioned to establish paternity of the daughter. In her answer,

Mother acknowledged that Father was the biological father of the daughter. A few

months later, however, the court dismissed the paternity case at the parties’ request.6

At the end of 2016, Grandfather moved out of Father’s apartment and returned to

his home in New York. G. lived in Maryland with Father and Father’s girlfriend until

November 2017, when the relationship between Father and his girlfriend ended. At that

time, Father decided that G. should live primarily with his grandparents in New York.

Father began having visits with G. no more than six days per month.

Meanwhile, in March 2017, Mother moved back to California, taking the parties’

infant daughter with her. After a brief stay with her parents, Mother found work in a

series of restaurant management jobs. In July 2018, she married a restaurant manager

who has custody of a son from a previous relationship. Mother stopped working outside

the home after she became pregnant with her third child.

Despite participating in mediation, Father and Mother reached no agreement

regarding custody of G. In April 2018, the circuit court held a hearing with the goal of

establishing a temporary custody and visitation arrangement pending the trial. On an

interim basis, the court granted sole legal custody and primary physical custody of G. to

6 According to Father, he withdrew his petition to establish paternity of the daughter because he “wasn’t convinced” that she was his child. Eventually, a blood test taken in October 2018 established a 99.99% probability that he is the biological father of the daughter.

6 Father. The court permitted Mother to have two, two-hour visits with G. (their first in-

person contact since her move to California) at the food court of a nearby shopping mall.

The court ordered Father to provide Mother with access to G. through FaceTime or a

comparable video chat service for up to 15 minutes, four times per week.

Mother’s access with G. under the interim order became a subject of frequent

disagreement. Because G. lived at Grandfather’s home and because Father refused all

phone communication with Mother, Father relied on Grandfather to facilitate the calls

between Mother and G. Mother and Grandfather were not able to work cooperatively on

scheduling calls. Father moved for a modification of the interim order, seeking to

establish a fixed schedule, limited to two calls per week. At one point, after Grandfather

stopped responding to her communications, Mother contacted the police in White Plains

and in Baltimore and asked them to check on G.’s welfare. The FaceTime calls between

Mother and G. resumed by the fall of 2018, but Mother remained dissatisfied with the

duration of the calls. Mother petitioned the court to hold Father in contempt for failure to

comply with the interim order.7

E. Trial on the Parents’ Claims for Custody

In January 2019, the circuit court held a two-day trial on Father’s and Mother’s

competing requests for custody. The parties provided the court with information about

the respective family living arrangements that they had established since they stopped

living together. The court received testimony and evidence concerning Mother’s assault

7 The circuit court eventually denied her contempt petition as moot when it replaced the interim order with a final custody order.

7 of Father and neglect of G. in 2015.

Father testified that, on August 8, 2015, Mother “punched [him] in [his] left arm

and then she stormed out in front of all of [his] co-workers.” Father said that Mother also

“slapped [him] in the right side of [his] face” later that day. According to Father, Mother

had not previously committed any acts of violence against him before that day. Based on

her actions, Mother was found guilty of second-degree assault.

Father was not present when G. sustained injuries while in Mother’s care on

December 11, 2015, but Father expressed his belief that Mother had “abused” their son.

More specifically, Father said: “The last thing that [G.] knows about [Mother] is that she

had beat him up and he was taken away from her.” Father said that he still had “extreme

concerns for [G.]’s safety” based on what he called Mother’s “volatile . . . temperament.”

According to Father, Mother often “snaps,” “uses her hands,” and “gets violent.” Father

acknowledged, however, that he had had minimal interactions with Mother since the

assault incident in August 2015.

During cross-examination, Father attempted to reconcile his assertions that Mother

is “dangerous” with his acquiescence in Mother raising the parties’ daughter for more

than two years. When asked to explain why he was not concerned for the daughter’s

welfare in Mother’s care, Father responded that his daughter “is a completely different

person” than G. He added: “It is a female first of all and it’s different.”

At the time of trial, Father was working full-time as a police officer and living in a

two-bedroom apartment in Baltimore. Father said that he had never used a daycare

provider, but instead he had relied on his parents or his girlfriend (until she stopped living

8 with him) to care for G. while he was working. Father explained that his work schedule

required him to work 10-hour shifts on four consecutive days, followed by three days off.

Father would alternate between working day shifts for four weeks and then night shifts

for four weeks. Father mentioned that he often works overtime.

Father confirmed that, since November 2017, G. had been residing primarily with

Grandfather in White Plains, New York. Father said that he was using FaceTime to

speak with G. daily, but that G., as a four-year-old child, would not remain interested in a

conversation for more than a few minutes at a time. Father explained that he had been

having visits with G. “[p]robably once or twice a month,” for three days at a time. In

other words, Father said, he had been seeing G. on as many as six days per month or as

few as three days per month. Sometimes, Father would travel to New York to visit G.

Other times, Grandfather would bring G. to Maryland, where they would use bunk beds

in the second bedroom of Father’s apartment.

During direct examination, Father was asked whether he would be “able to assume

custody” if “the [c]ourt did not believe that it was in [G.’s] best interest to stay with and

primarily reside with his paternal grandfather[.]” In response, Father said that he “would

be able to” assume custody because he expected that his schedule would soon change to a

“more daycare friendly” schedule, with eight-hour shifts on five consecutive days.

Grandfather, a retired police officer, testified that he owns a single-family, three-

bedroom home in White Plains, New York. Grandfather lives there with his wife, who

works as a registered nurse, and his daughter, who attends high school. Grandfather

explained that, as a retiree, he is able to stay home to care for G. without relying on a

9 daycare provider. Since September 2018, G. had been attending preschool at a private,

Catholic-affiliated school near Grandfather’s home. Grandfather had been paying all

daily expenses associated with G., except that Father would reimburse Grandfather for

preschool tuition payments.

In her testimony, Mother recalled that she had been G.’s primary caregiver for the

first year of G.’s life. Mother testified that, while she was living with Father, she felt

“controlled” and “overwhelm[ed]” by Father’s “demands.” Mother acknowledged that,

on August 8, 2015, she had a “disagreement” with Father and “hit his arm.”

Mother further acknowledged that G. sustained injuries while in her care on

December 11, 2015. Mother said that, at that time, she was unemployed, pregnant, and

caring for G. “away from friends, family, [or] support,” while living in subsidized

housing in West Baltimore. Mother claimed that she had asked one of her roommates to

watch G. while she was taking a shower. Mother said that she “heard [her] son

screaming” and found him on the floor, between a bed and a wall. Mother acknowledged

that “[w]hat happened to [G.] was absolutely horrible.” Mother admitted that she did not

“get[] him proper care immediately when [she] should have[.]” Mother said that she had

“paid a big price” and “learned from that mistake.” Mother described herself as reaching

“rock bottom” when G. was removed from her care.

The program director of Chrysalis House testified on Mother’s behalf. The

program director described Chrysalis House as a “diagnostic and transitional program”

for pregnant women and women with young children. The program director reported that

Mother had not been a “disciplinary problem” while she was staying at Chrysalis House

10 for longer than a year while serving probation for her neglect conviction. The program

director explained that she works with the women in the program daily “to make sure that

they have bonded well with their newborns, that they are nurturing them properly and

that they are abiding by the rules of the program.” Based on her observations, the

program director opined that Mother is “an excellent mom” to the parties’ daughter.

Mother described her year-long stay at Chrysalis House as an experience that

helped her “work through and overcome” issues with “anxiety” and “self-esteem

problems.” Mother said that, although “nothing about [her] decision was easy,” she

decided to return to her home town in California in March 2017 after the end of her

probation. Mother said that she felt that she “needed to be closer to [her] family where

they could properly help [her] and support [her] and get [her] life back in order.” Mother

believed that she had “turned [her] life around” because, for more than two years, she had

been raising the parties’ daughter “without issue.”

At the time of trial, Mother was living in a three-bedroom townhouse in West

Sacramento, California, along with her husband, her husband’s four-year-old son, her

two-year-old daughter, and their newborn daughter. Mother characterized her husband as

“a very nurturing father” who had developed a close bond with her daughters. Mother

explained that her most recent pregnancy was a “high risk pregnancy” involving

“numerous hospitalizations.” Mother said that, after she experienced complications, she

and her husband decided that she should stop working in the restaurant business and

“become a permanent stay-at-home mother.” Mother said that she was “in the process of

getting [a] certification as a medical coder through the American Health Information

11 Management Association[.]” Mother anticipated that she would take a final examination

to become certified by May 2019, and then she would search for “a work-at-home

position.” Mother said that she did not know her husband’s income, but she believed that

her husband had the ability to support their family with his earnings as the manager of a

restaurant near their home.8

At both the beginning and end of the trial, Father called attention to the court’s

obligations under Md. Code (1984, 2019 Repl. Vol.), § 9-101 of the Family Law Article

(“FL”). That statute provides that, “if the court has reasonable grounds to believe that a

child has been abused or neglected by a party” to a custody or visitation proceeding, the

court must determine “whether abuse or neglect is likely to occur if custody or visitation

rights are granted to the party.” FL § 9-101(a). Unless the court makes a specific finding

that “there is no likelihood of further child abuse or neglect by the party[,]” the court

must deny the party’s request for custody or unsupervised visitation. FL § 9-101(b).

Father argued that, given Mother’s conviction for neglect of G., the court should

grant her nothing more than supervised visitation. Father also argued that, even if Mother

could demonstrate that there was no likelihood of further child abuse or neglect, G.’s best

interests would be served by continuing the present arrangement, in which G. was living

primarily with Grandfather in New York.

For her part, Mother argued that her life circumstances in 2019 were much

different from those at the time of her criminal conduct in 2015. Mother emphasized that

8 Mother’s husband was present at trial, but he did not testify.

12 she and her husband were already raising three young children (including one biological

child of Father) in their home. Mother also expressed her concern that, even though

Father already had been granted custody of G., Father had been relying on Grandfather to

raise G. in another state.

F. Custody Determination by the Circuit Court

Two weeks after the trial, the circuit court issued a comprehensive written opinion

explaining its decision to grant Mother’s request for custody of G.

The court began by explaining its rationale for the interim custody order from

April 2018, in which the court had provided Mother only a few opportunities for

visitation. The court explained:

The purpose of the interim order was to temporarily preserve the status quo and to establish a baseline for future custody and visitation arrangements. It was based on limited testimony and was not a determination regarding the final merits of custody and visitation. The Court granted Father sole legal custody and primary physical custody because [G.] had ostensibly been in his custody for an extended period of time. The nature of the visitation arrangements, i.e., meeting in a public place, was not based on any assessment of Mother’s fitness as a parent. The goal was to minimize any volatility among the people involved by having them meet in a public place because of the palpable level of acrimony between the parties.

Next, the court made specific findings under FL § 9-101. The court found that

there were “reasonable grounds to believe that [G.] had been neglected by Mother.” The

court made that finding based on “the criminal and child protective services proceedings

related to Mother and [G.]” as well as the “evidence and testimony presented at the

hearing.” The court “specifically f[ound], however, that there is no likelihood of further

child abuse or neglect by Mother.” The court concluded, therefore, that FL § 9-101 did

13 not preclude an award of custody or visitation to Mother.

The court explained its determination as follows:

Mother has learned some difficult lessons in life. These lessons have cost her not only financially, but have cost her by delaying her ability to form a relationship with [G.]. She testified candidly and credibly regarding the impact the criminal and child protective services proceedings had on her and the motivation those and other events provide to ensure that her past conduct does not dictate her future ability to be a fit parent.

. . . Mother’s life in general is on a better trajectory than it was soon after [G.]’s birth. At that time, she was emerging from a volatile relationship, was unemployed, had been incarcerated, and was living in transitional housing. Now, she is a married stay-at-home mom working towards a professional certification and is raising two of her children and her husband’s child from a prior relationship. She lives in a townhome with her husband and their children. Her testimony demonstrates that she has an appropriate routine with the children and that she and her husband have the means to support themselves and their children. There was no evidence presented regarding any current issues with her parenting ability. There is no evidence to suggest that Mother would intentionally harm [G.].

Turning to the ultimate decision, the court commented: “This is a particularly

difficult case because of the dynamics of the relationship between the parties, the

figurative distance between their respective positions, and the geographical distance

between their respective residences.” The court made clear that Father and Mother, as

the only two parties to the case, were the only “two choices for custody of [G.].” The

court explained: “Despite [Grandfather’s] role in [G.’s] upbringing, [Grandfather] is not a

party because he has not filed a motion to intervene or otherwise become a party.”

Accordingly, the court analyzed the factors that are relevant to custody disputes between

14 two natural parents.9

Given the distance between Father’s Maryland residence and Mother’s California

residence, the court concluded that one parent should have primary physical custody.

The court concluded that joint legal custody would be inappropriate, because “Father and

Mother have consistently demonstrated that they do not have the capacity to

communicate and reach shared decisions affecting [G.]’s welfare.” The court observed:

“Their interactions are virtually non-existent because Father ‘blocked’ Mother from

contacting him on his phone and insists that she communicate with [Grandfather]

regarding [G.]”

The court determined that many of the relevant custody factors did not weigh in

favor of either parent. The court found that both parents had the ability to meet G.’s

needs in their respective homes. The court recognized that Mother’s self-reported

“mental health issues” and her “criminal convictions . . . cannot be overlooked.” In

assessing Father’s character, however, the court credited Mother’s testimony that “Father

was controlling and abusive when they were in a relationship.”10 The court noted that

both parents had made decisions which caused them not to be “actively engaged” in G.’s

life “for extended periods of time.” The court concluded that Mother’s limited contact

9 See, e.g., Azizova v. Suleymanov, 243 Md. App. 340, 345-46 (2019) (discussing Montgomery Cty. Dep’t of Soc. Servs. v. Sanders, 38 Md. App. 406 (1977), and Taylor v. Taylor, 306 Md. 290 (1986)), cert. denied, ___ Md. ___ (Mar. 11, 2020). 10 The court did not use the term “abusive” here to refer to acts of physical abuse. The main example given by the court was Mother’s testimony that she “was forced to live in Father’s car” while she was pregnant with G.

15 with G. resulted, at first, from her own conduct, but that, more recently, Father and his

family had taken actions “to prevent [G.] from establishing a meaningful relationship

with Mother.” The court recognized that, although “Father ha[d] spent substantially more

time with [G.] since his birth,” Father had decided to “limit[] his visitation with [G.] to

one or two trips . . . each month” throughout the previous year.

The court’s ultimate decision turned on the contrast between the family living

arrangements that the two parents had established since 2017. The court found that

Mother had shown that she was able and willing to raise G. in the home where she and

her husband were already raising three young children. The court found that, although

Father appeared to be able to raise G. in his Maryland home, Father had demonstrated his

preference that G. live primarily with Grandfather in New York.

Assessing the relative fitness of the parents, the court wrote:

Both parties have issues regarding their fitness to be parents. A few years ago, Mother’s fitness to be a parent was questionable. She was convicted of child neglect regarding [G.] and was the subject of adverse findings by a child protective services agency, although the conduct does not reflect an intent to harm [G.]. These are serious issues, but they do not forever preclude her from being considered a fit parent. She was candid in her testimony regarding her mental health and other challenges she has faced in her life and how she overcame those challenges with the assistance of Chrysalis House, family and other resources. She also clearly articulated the life lessons she has learned and her genuine commitment to be a fit parent. Mother has made substantial progress and is currently doing well in California. She is raising [G.]’s two-year-old sister . . . and [G.]’s newborn half-sister . . . without any issues. She also assists her husband in raising his four-year-old son . . . . Father has demonstrated a baseline level of parental fitness. His parenting solution, however, is to delegate his parenting authority to his parents . . . in New York, while seeing [G.] once or twice a month. That is not real parenting. With respect to fitness, Mother has overcome challenges and demonstrated that she is capable of being a fit parent. Father has not demonstrated an ability to be a fit parent

16 without relying on his parents to effectively raise [G.]. Consideration of this factor supports granting custody to Mother.[11]

The court deemed Mother’s request for custody to be “more genuine and sincere”

than Father’s request. The court was persuaded that Mother “genuinely wants to reunite

with [G.] and to develop a meaningful relationship with him[,]” and “wants him to live

with her and be a part of her family.” The court concluded that Father’s request was “not

as genuine” as Mother’s request, largely because Father had chosen to “delegate[] his

parenting responsibility to his parents[.]” In the court’s assessment, Father was

“nominally seeking custody with the intent to continue to delegate” the task of raising G.

to Father’s parents. The court concluded that Father’s decision to delegate his parental

responsibilities, in combination with his “unwilling[ness] to take meaningful steps to

foster a meaningful relationship between [G.] and Mother[,]” worked “to the detriment of

[G.]’s relationship with his Mother and his siblings.”

The court concluded that, “[a]lthough Father may have the financial means to

maintain a stable and appropriate home for [G.], [Father] ha[d] not demonstrated a

genuine interest in maintaining a home with [G.].” The court noted that Father had no

children living in his household, aside from occasional visits with G. and with his other

son from another relationship. The court also noted that Mother had demonstrated her

“desire and ability to care for [G.] if he lived with her” because she already lived with

three young children in her household. The court did not doubt Father’s assertions that

11 Citing this passage, Mother asserts that the circuit court found that Father was an unfit parent. Her interpretation is plainly incorrect.

17 “it is challenging to find reliable day care because of his alternating-shift schedule as a

police officer.” Nonetheless, the court reasoned that, “[r]egardless of whether his limited

visitation with [G.] [wa]s related to his schedule or a lack of desire to spend more time

with [G.], Father ha[d] demonstrated that he does not avail himself of opportunities to

visit with [G.] frequently.”

Overall, the court concluded that Mother was “ready, willing and able to provide a

safe, comfortable and loving home for [G.]” The court concluded that it was in G.’s best

interest to live with Mother during the school year and to have visitation with Father

during school breaks and regular access to Father through a video chat service. The court

noted that, if Father exercised his visitation rights under this schedule, his in-person

contact with G. would actually increase, relative to the arrangement in which G. was

living primarily with grandparents in New York.

The court awarded sole legal custody and primary physical custody of G. to

Mother. The court granted Father visitation with G. on winter breaks from school in odd-

numbered years, on spring breaks in even-numbered years, and for up to six weeks during

the summer each year. The court required Mother to provide Father with access to G.

through FaceTime or a comparable video chat service for up to 15 minutes, four times per

week, and on certain holidays. The court directed that the exchange of custody should

occur at Baltimore/Washington Thurgood Marshall International Airport and authorized

law enforcement personnel to use reasonable and necessary force to return G. to Mother.

G. Father’s Post-Judgment Challenges to the Custody Determination

The court entered the order regarding custody and visitation on February 6, 2019.

18 Two days after the entry of judgment, Father filed a notice of appeal and a motion asking

the circuit court to stay the custody order pending the outcome of the appeal.

In his motion to stay, Father asserted that, although the circuit court had made

specific findings under FL § 9-101, the court’s opinion included no discussion of a

related statue, FL § 9-101.1, which concerns acts of abuse including abuse by one parent

against another. That statute requires the court to “consider . . . evidence of abuse by a

party against . . . the other parent of the party’s child” when the court decides custody or

visitation cases. FL § 9-101.1(b)(1). It provides: “If the court finds that a party has

committed abuse against the other parent of the party’s child . . ., the court shall make

arrangements for custody or visitation that best protect: (1) the child who is the subject of

the proceeding; and (2) the victim of the abuse.” FL § 9-101.1(c). Father argued that,

given the “undisputed evidence” that Mother had been found guilty of assaulting Father,

the court erred by “fail[ing] to consider” FL § 9-101.1 in its custody determination.

On February 15, 2019, the circuit court denied Father’s motion to stay the final

custody order. The court rejected Father’s assertions that the lack of a “specific

reference” to FL § 9-101.1 meant that the court had failed to consider that issue. The

court said that it had “considered the evidence regarding abuse, the parties’ history of

interactions and the dynamics of the parties’ relationship.” The court said that its

“consideration of the allegations of abuse between the parties was subsumed in the

consideration of the relevant factors to determine custody and visitation.” The court

reasoned that the “geographical distance between the parties” would “minimize[] the

extent of personal interaction between the parties and should reduce conflict between the

19 parties.” The court concluded that the custody and visitation arrangements established in

the order would “minimize conflict and dispute to provide the protection contemplated by

[FL § 9-101.1].”12

After the court declined to stay its custody order, Father made a timely motion to

alter or amend the judgment.13 Father continued to assert that the court had “failed to

consider” FL § 9-101.1. In response, Mother pointed out that the court had already

“clarified [its] ruling” regarding FL § 9-101.1 in the order denying Father’s motion for a

stay.

The circuit court denied Father’s motion to alter or amend the custody order. The

court concluded that “it [was] permitted to rule on the pending motion to alter or amend

notwithstanding [Father’s] appeal to the Court of Special Appeals.” The court said that it

had considered the merits of Father’s motion and determined that “[t]here is no legal or

factual basis to alter, amend or reconsider the . . . order regarding custody and visitation.”

Father moved for reconsideration of the order denying his motion to alter or

amend the custody order. Among other things, he reiterated his assertion that the court

“failed to properly analyze” FL § 9-101.1. The court denied that motion.14

12 Father also filed a motion asking this Court to stay the custody order pending his appeal. This Court denied that motion on February 15, 2019. 13 The period for filing the motion to alter or amend the judgment ran until February 19, 2019, which was the Tuesday after the Presidents’ Day holiday. See Warehime v. Dell, 124 Md. App. 31, 40-41 (1998) (applying Md. Rule 1-203(a)). 14 During the pendency of this appeal, Father moved for a modification of custody, and Mother opposed his motion. The motion remains pending in the circuit court.

20 DISCUSSION

In this appeal, Father asks this Court to reverse or vacate the order granting sole

legal custody and primary physical custody of G. to Mother.

As Father observes in his brief, appellate courts apply different standards when

reviewing different aspects of a custody or visitation decision. The appellate court will

not set aside the trial court’s factual findings unless those findings are clearly erroneous.

See, e.g., Burak v. Burak, 455 Md. 564, 616-17 (2017). To the extent that a custody

decision involves a legal question, such as the interpretation of a statute, the appellate

court must determine whether the trial court’s conclusions are legally correct, and, if not,

whether the error was harmless. See id. at 617. The trial court’s ultimate decision will

not be disturbed unless the trial court abused its discretion. See id.

Father’s appellate brief presents the following two questions:

1. Whether the trial court committed legal error when it failed to consider [FL § 9-101.1] when granting [Mother] sole physical and legal custody of the minor child.

2. Even if the court was not required to consider [FL § 9-101.1], whether the trial court abused its discretion when it granted [Mother] sole physical custody of the minor child based upon the best interests of the child standard.

In response to the first question, we reject Father’s assertion that the trial court

failed to meet its obligations under FL § 9-101.1 to consider the evidence of Mother’s

prior abuse of Father and to make appropriate protective arrangements. In response to

the second question, we conclude that the ultimate custody decision was not based on any

error or abuse of discretion. The judgment will be affirmed.

21 I. Evidence of Abuse by Mother Against Father

Father’s first challenge concerns an issue that he first raised in his motion to stay

the custody order and in his motion to alter or amend the final custody order. Father

again contends that the court erred by “fail[ing] to consider” FL § 9-101.1 when it

granted Mother’s request for custody.

Collectively, sections 9-101 and 9-101.1 of the Family Law Article concern

custody and visitation determinations where there is evidence that a party previously

committed certain acts of abuse or neglect. FL § 9-101 provides:

(a) In any custody or visitation proceeding, if the court has reasonable grounds to believe that a child has been abused or neglected by a party to the proceeding, the court shall determine whether abuse or neglect is likely to occur if custody or visitation rights are granted to the party.

(b) Unless the court specifically finds that there is no likelihood of further child abuse or neglect by the party, the court shall deny custody or visitation rights to that party, except that the court may approve a supervised visitation arrangement that assures the safety and the physiological, psychological, and emotional well-being of the child.

In short, section 9-101 embodies a presumption “that a child’s best interest is not

served by placing the child in the custody of someone with a history” of child abuse or

neglect. In re Adoption No. 12612 in Circuit Court for Montgomery Cty., 353 Md. 209,

238 (1999). This statute “dictates that, if the court . . . has reasonable grounds to believe

that a child . . . has been abused or neglected by a party to the proceeding, the court must

determine whether abuse or neglect is likely to occur if custody or visitation rights are

granted to . . . the party responsible for the abuse or neglect.” Id. at 234. “Unless the

court specifically finds that there is no likelihood of further [child] abuse or neglect by

22 that party, it must deny custody or visitation rights to that party except for a supervised

visitation arrangement that assures the safety and the physiological, psychological, and

emotional well-being of the child.” Id.

The Court of Appeals has explained that FL § 9-101 often “needs to be considered

together” with FL § 9-101.1. Id. at 229. That section “deals not just with abuse [or

neglect] by a party . . . against a child but also with abuse by that party directed against

the other parent of the child or the party’s current spouse.” Id. at 236. According to the

Court of Appeals, the “legislative history of § 9-101.1 indicates recognition by the

Legislature of a deep concern over the effect on a child of being in the maelstrom of any

domestic violence within the home, including the abuse of adults and other children,

whether or not those victims are related to the child whose custody or visitation is at

issue.” Id. at 236-37. In the process of enacting FL § 9-101.1, the General Assembly

considered “the adverse effects on children from abusive households generally, not only

the psychological harm derived from witnessing violence directed against other

household members, but also the greater likelihood, statistically demonstrated, that

violence directed against others, including adults in the home, will eventually be directed

against them as well[.]” Id. at 237.

As defined by FL § 9-101.1, the term “abuse” includes various crimes against the

person, including “assault in any degree[.]” FL § 4-501(b)(1)(iii). The statute provides:

(b) In a custody or visitation proceeding, the court shall consider, when deciding custody or visitation issues, evidence of abuse by a party against:

(1) the other parent of the party’s child; (2) the party’s spouse; or

23 (3) any child residing within the party’s household, including a child other than the child who is the subject of the custody or visitation proceeding.

(c) If the court finds that a party has committed abuse against the other parent of the party’s child, the party’s spouse, or any child residing within the party’s household, the court shall make arrangements for custody or visitation that best protect:

(1) the child who is the subject of the proceeding; and (2) the victim of the abuse.

FL § 9-101.1(b)-(c).

In In re Adoption No. 12612 in Circuit Court for Montgomery County, 353 Md.

209 (1999), the Court of Appeals set aside an award of custody to a parent who

previously abused a child, where the trial court made no specific finding that there was no

likelihood of further child abuse or neglect by that parent. Id. at 212. There, the trial

court had awarded custody of a child to his mother, notwithstanding that the mother had

been convicted of murdering another of her children six years earlier. Id. The trial court

had concluded that the murder was the product of postpartum depression and stated that

the mother “did not ‘pose a threat of death or fatal abuse’” to the child. Id. at 227. The

Court of Appeals concluded that, under those circumstances, FL § 9-101 required the

court to “determine ‘whether abuse or neglect [was] likely to occur if custody or

visitation rights’ were granted to [the mother], and, unless it specifically found that ‘there

[was] no likelihood of further child abuse or neglect’ by her, to deny custody and

unsupervised visitation.” Id. at 239. The Court explained that FL § 9-101 requires the

trial court to “make a specific finding” and “does not envision an appellate court

assuming the required finding from other disparate statements by the trial judge.” Id. at

24 239. The Court vacated the custody order and remanded the case for the trial court to

make a specific determination of whether there was a likelihood of further child abuse or

neglect by the mother. Id. at 239-40.

Here, the trial court’s opinion leaves no doubt that the court took account of the

requirements of FL § 9-101. After quoting that provision in its entirety, the court

expressly found, “based on the criminal and child protective services proceedings related

to Mother and [G.] and evidence and testimony presented at the hearing[,]” that there

were “reasonable grounds to believe that [G.] ha[d] been neglected by Mother.” The

court “specifically f[ound], however, that there is no likelihood of further child abuse or

neglect by Mother.” The court concluded, therefore, that FL § 9-101 did not “preclude

th[e] [c]ourt from awarding custody and visitation rights to Mother.”

In addition to the evidence that Mother neglected G., the court had also received

evidence that Mother abused Father within the meaning of FL § 9-101.1. Namely, the

court had received evidence that Mother had been found guilty of assaulting Father in

2015. The court’s opinion did not expressly discuss this evidence or the statute.

Generally, even where the trial court must issue a statement explaining the reasons

for its decision, the court need not articulate every step of the judicial thought process in

order to show that it has conducted the appropriate analysis. See Viamonte v. Viamonte,

131 Md. App. 151, 162 (2000); Bangs v. Bangs, 59 Md. App. 350, 370 (1984). Certain

statements from the trial court’s opinion indicate that, at a minimum, the court was aware

of Mother’s conduct of assaulting Father in August 2015. Most notably, the court said

that “Mother has experienced and overcome a variety of challenges, including mental

25 health issues and criminal convictions.” (Emphasis added.) The court said that the

“volatile relationship” between Father and Mother “seem[ed] to have brought out the

worst in both of them.” The court explained that its interim custody order required

Mother’s visits with G. to occur “in a public place,” with the goal of “minimiz[ing] any

volatility among the people involved[,]” in light of “the palpable level of acrimony

between the parties.”

Father faults the court for failing to mention FL § 9-101.1 in its opinion and failing

to discuss the evidence of Mother’s assault against Father. Father contends that the court,

faced with “undisputed evidence” that Mother assaulted Father in August 2015, had an

obligation to “make and articulate specific findings” under FL § 9-101.1.

In support of his argument, Father attempts to liken the present case to In re

Adoption No. 12612 in Circuit Court for Montgomery County, 353 Md. 209 (1999). We

find that comparison to be inapt. Here, the trial court made the findings that are expressly

required by FL § 9-101, when it found that it had reasonable grounds to believe that

Mother had neglected G. but specifically found no likelihood that Mother would commit

further child abuse or neglect. Moreover, the court fully articulated the rationale for its

conclusion that there was no likelihood of further child abuse or neglect by Mother.

The In re Adoption No. 12612 opinion includes some discussion of FL § 9-101.1,

but the opinion does not address whether trial courts must make specific findings under

FL § 9-101.1 whenever that statute is implicated. The language used to describe the

court’s obligations in FL § 9-101.1 is by no means identical to or equivalent to the

language used in FL § 9-101. Section 9-101 states that the court “shall determine” the

26 likelihood of further child abuse or neglect and that the court “shall deny” custody or

unsupervised visitation unless the court “specifically finds” no likelihood of further child

abuse or neglect. By contrast, section 9-101.1 states that the court “shall consider”

evidence of abuse by a party against the child’s parent and that the court “shall make

arrangements” to best protect the child and the victim of the abuse, “[i]f the court finds”

that the party has committed abuse against the other parent.

In any event, even if the trial court was obligated to make specific findings under

FL § 9-101.1, the record shows that the court has already made those findings.

Immediately after the court entered its opinion and order regarding custody, Father

argued that the court should stay its order because, in his words, the court had “failed to

consider” FL § 9-101.1. In the order denying his motion, the court wrote:

For the sake of clarity of the order regarding custody and visitation and for the record on appeal, the Court will address an issue Father raised regarding section 9-101.1 of the Family Law Article[.] . . .

According to Father, the Court did not consider the provisions of this statute in the order regarding custody and visitation. That is not correct. By way of contrast, the Court specifically addressed section 9-101 of the Family Law Article . . . because that statute precludes a court from awarding custody to a party . . . unless the Court makes a specific finding regarding future neglect or abuse. . . . The lack of a specific reference to section 9-101.1 of the Family Law Article does not mean that the Court did not consider the provisions and purpose of that statute.

The Court’s consideration of the allegations of abuse between the parties was subsumed in the consideration of the relevant factors to determine custody and visitation. The Court considered the evidence regarding abuse, the parties’ history of interactions and the dynamics of the parties’ relationship. The geographical distance between the parties . . . minimizes the extent of personal interaction between the parties and should reduce conflict between the parties. Based on the Court’s consideration the evidence and the factors to determine custody and visitation, the Court

27 otherwise made arrangements to minimize conflict and dispute to provide the protection contemplated by section 9-101.1 of the Family Law Article.[15]

Despite that ruling, Father reiterated his assertion that the trial court had “failed to

consider” FL § 9-101.1 in his subsequent motion to alter or amend the judgment. In

response, Mother correctly observed that the court had already “clarified [its] ruling”

regarding FL § 9-101.1. The court denied his motion to alter or amend the custody order,

stating that there was “no legal or factual basis” to do so.

We conclude that, under these circumstances, the trial court’s failure to mention

FL § 9-101.1 in its initial opinion is no basis for vacating the judgment. To the extent

that the initial opinion might arguably have fallen short of fulfilling the court’s

responsibilities under FL § 9-101.1, the court addressed any deficiency, six days later, in

the order denying Father’s motion for a stay. In light of that order, we have no doubt that

the court did, in fact, consider the evidence of Mother’s abuse against Father and exercise

its discretion regarding the appropriate protective arrangements. No practical purpose

would be served by further proceedings for the court to restate what it has already said.

Father also argues that the trial court “abused its discretion” under FL § 9-101.1(c)

“when it found that granting [Mother] sole legal and [primary] physical custody would

best protect [G.] and Father[.]” This argument reflects a misunderstanding of the court’s

statutory obligation. FL § 9-101.1 “does not scrap the overall best interest of the child

standard in favor of another single, alternative standard[.]” In re Adoption No. 12612,

15 Father omitted the order denying his motion for stay from the record extract.

28 353 Md. at 238. Rather, it obligates the court, when it receives evidence of a party’s

history of violence against certain household members, “to give due consideration to such

violence in determining what is in a child’s best interest.” Id. at 237. The court

concluded that, whether G. lived with Father or with Mother, additional protective

arrangements were unnecessary because this outcome would maintain minimal in-person

interactions between the two parents. We see nothing unreasonable about this exercise of

discretion.

II. Decision to Grant Mother’s Claim for Custody

Father’s second challenge concerns the merits of the trial court’s ultimate custody

decision. Generally, orders concerning custody and visitation are “within the sound

discretion of the trial court, not to be disturbed unless there has been a clear abuse of

discretion.” Barrett v. Ayres, 186 Md. App. 1, 10 (2009).

“Child custody and visitation decisions are among the most serious and complex

decisions a court must make, with grave implications for all parties.” Conover v.

Conover, 450 Md. 51, 54 (2016). The court’s primary objective, when deciding disputes

over child access, “is to serve the best interests of the child.” Id. at 60. Assessing the

child’s best interests requires the court “‘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.’” Domingues v. Johnson, 323 Md. 486, 499 (1991) (quoting Montgomery

Cty. Dep’t of Soc. Servs. v. Sanders, 38 Md. App. 406, 419 (1977)).

This Court has “observed that ‘there is no such thing as a simple custody case,’

and that ‘a judge agonizes more about reaching the right result in a contested custody

29 issue than about any other type of decision.’” Bienenfeld v. Bennett-White, 91 Md. App.

488, 502-03 (1992) (quoting Montgomery Cty. Dep’t of Soc. Servs. v. Sanders, 38 Md.

App. at 414). Given the “unique character of each case” and “the subjective nature of the

evaluations and decisions that must be made,” the courts have identified the “major

factors that should be considered” in custody cases, while recognizing that “no single list

of criteria will satisfy the demands of every case.” Taylor v. Taylor, 306 Md. 290, 303

(1986). In many cases, the evidence and factors “would support the ultimate decision

made by the trial judge” and “would also support a contrary decision” to award custody

to the other parent. Goldmeier v. Lepselter, 89 Md. App. 301, 313 (1991); accord

Domingues v. Johnson, 323 Md. at 492. “‘At the bottom line, what is in the child’s best

interest equals the fact finder’s best guess.’” Bienenfeld v. Bennett-White, 91 Md. App. at

503 (quoting Montgomery Cty. Dep’t of Soc. Servs. v. Sanders, 38 Md. App. at 419).

Accordingly, trial courts are entrusted with “great discretion in making decisions

concerning the best interest of the child.” Petrini v. Petrini, 336 Md. 453, 469 (1994).

The “appellate court does not make its own determination as to a child’s best interest; the

trial court’s decision governs, unless the factual findings made by the [trial] court are

clearly erroneous or there is a clear showing of an abuse of discretion.” Gordon v.

Gordon, 174 Md. App. 583, 637-38 (2007).

The clearly-erroneous standard is “a deferential one, giving great weight” to the

trial court’s findings. Viamonte v. Viamonte, 131 Md. App. 151, 157 (2000). When

scrutinizing factual findings, this Court must “give due regard to the opportunity of the

trial court to judge the credibility of the witnesses.” Md. Rule 8-131(c). Generally, a

30 “trial court’s findings are ‘not clearly erroneous if there is competent or material evidence

in the record to support the court’s conclusion.’” Azizova v. Suleymanov, 243 Md. App.

340, 372 (2019) (quoting Lemley v. Lemley, 109 Md. App. 620, 628 (1996)), cert. denied,

___ Md. ___ (Mar. 11, 2020).

“On the ultimate issue of which party gets custody . . . we will set aside a

judgment only on a clear showing that the [trial court] abused [its] discretion.” Viamonte

v. Viamonte, 131 Md. App. at 157 (citing Davis v. Davis, 280 Md. 119, 125 (1977)).

Appellate courts “rarely, if ever, actually find a reversible abuse of discretion on this

issue.” McCarty v. McCarty, 147 Md. App. 268, 273 (2002). An abuse of discretion

may occur when no reasonable person would take the view adopted by the trial court, or

when the court acts without reference to any guiding rules or principles, or when the

ruling is clearly against the logic and effect of facts and inferences before the court. See,

e.g., Santo v. Santo, 448 Md. 620, 625-26 (2016). This standard “accounts for the trial

court’s unique ‘opportunity to observe the demeanor and the credibility of the parties and

the witnesses.’” Id. at 625 (quoting Petrini v. Petrini, 336 Md. at 470). The trial judge

who “‘sees the witnesses and the parties, [and] hears the testimony . . . is in a far better

position than the appellate court, which has only a [transcript] before it, to weigh the

evidence and determine what disposition will best promote the welfare of the [child].’”

Viamonte v. Viamonte, 131 Md. App. at 157 (quoting Davis v. Davis, 280 Md. at 125).

Because “appellate review is properly limited in scope, the burden of making an

appropriate decision necessarily rests heavily upon the shoulders of the trial judge.”

Taylor v. Taylor, 306 Md. at 311 (citation omitted). Indeed, custody decisions are

31 “unlikely to be overturned on appeal.” Domingues v. Johnson, 323 Md. at 492.

In this appeal, Father disputes the trial court’s finding pursuant to FL § 9-101 that

there was no likelihood of future abuse and neglect by Mother. As the parent found to

have previously neglected her child, Mother had the burden to produce evidence to

persuade the court that there was no likelihood that she would commit further child abuse

or neglect. See In re Yve S., 373 Md. 551, 587 (2003).

FL § 9-101 “does not absolutely preclude a parent who has previously abused or

neglected his or her child from ever having custody or visitation.” In re Adoption No.

12612 in Circuit Court for Montgomery Cty., 353 Md. 209, 238 (1999). This statute

“merely requires the court, when faced with a history of child abuse or neglect by a party

seeking custody or visitation, to give specific attention to the safety and well-being of the

child in determining where the child’s best interest lies and not place the child in harm’s

way.” Id. The statute “does not set an insurmountable burden; even upon substantial

evidence of past abuse or neglect, it does not require a finding that further abuse or

neglect is impossible or will, in fact, never occur, but only that there is no likelihood—no

probability—of its recurrence.” Id. In other words, the statute “does not require that the

hearing judge be a prophet or soothsayer and somehow ‘know’ that there will never be a

future incident of abuse or neglect.” In re Yve S., 373 Md. at 587-88. “Such a finding

would require unobtainable proof on the part of the parent, and omniscience on the part

of the judge.” Id. at 588.

Father argues that “the evidence was quite clear that [Mother] had done absolutely

nothing during [G.’s] entire life that would give any reasonable person the belief” that

32 she could care for G. without further child abuse or neglect. In making this very

argument, however, Father provides (at pages 18 through 25 of his opening brief) a

thorough account of much of the evidence that the court used to assess the likelihood of

further child abuse or neglect by Mother.

As the court summarized, the evidence established that, at the time that Mother

neglected G. in December 2015, “she was emerging from a volatile relationship, was

unemployed, had been incarcerated, and was living in transitional housing.” The court

credited Mother’s testimony that, after that instance of neglect, Mother worked to

“overc[o]me” her “mental health challenges” and other challenges “with the assistance of

Chrysalis House, family[,] and other resources.” At the time of trial in January 2019, her

commitment to raising her children was not simply aspirational; she and her husband

were raising three young children (including G.’s sibling and one child the same age as

G.). As the court noted, there was “no evidence presented regarding any current issues

with her parenting ability.” The court correctly understood that its task was to assess the

child’s best interest as of the time of the custody trial. See Azizova v. Suleymanov, 243

Md. App. at 357. The court’s evaluation of Mother’s past conduct was “only relevant

insofar as it [may be] predictive of future behavior and its effect on the child.” Id.

Father insists that Mother’s own testimony regarding her fitness as a parent to

three children “lack[s] any modicum of reliability.” In addition, Father disputes the

court’s conclusion that Mother did not intend to harm G. in December 2015, arguing that

Mother’s account of how G. sustained injuries “lacks credibility.” It is not our role, as an

appellate court, to second-guess the trial judge’s assessment of a witness’s credibility.

33 See, e.g., Michael Gerald D. v. Roseann B., 220 Md. App. 669, 687 (2014).

Father also suggests that Mother needed to produce additional evidence to

corroborate her testimony that she had made progress with her self-reported mental health

challenges. Father asserts that “there was no evidence from an expert or otherwise that

would have properly established that [Mother] had overcome the abundance of issues she

had experienced with [G.] during a very short period of time.” Father notes that Mother

“did not take the domestic violence classes [that] she was ordered to take” as a condition

of her probation and that she “had not taken any parenting classes.” Father fails to

mention, however, that Mother spent over a year in Chrysalis House under the

supervision of professionals (like the program director who testified on Mother’s behalf)

who counseled Mother and worked with her to ensure that she was giving proper care to

the parties’ daughter.

Mother was not required to meet some heightened evidentiary threshold before the

court could reasonably find that there was no likelihood of that she would commit further

child abuse or neglect. See In re Yve S., 373 Md. at 588 (noting that the court’s finding

“there is no likelihood abuse or neglect is likely to reoccur” should be made “by a

preponderance of the evidence”). General concerns about Mother’s mental health history

by no means precluded the court from finding that further abuse or neglect by Mother

was unlikely. See id. at 593-94. Despite Father’s insistence that Mother’s “mistakes and

issues were not in her past,” we see nothing unreasonable in the court’s conclusion that

Mother had sufficiently demonstrated her fitness as a parent during the three years that

followed her conviction for neglect. Overall, the court made a reasonable conclusion

34 that, given the dramatic changes in Mother’s life, the circumstances under which she

previously committed neglect were unlikely to be repeated.

In addition to disputing the court’s specific findings under FL § 9-101(b), Father

contends that the trial court “failed to properly weigh the evidence presented at trial”

when the court assessed G.’s best interests.

Among Father’s challenges to the court’s evaluation of the custody factors, the

most significant is his assertion that Mother “voluntarily abandoned” G. when she moved

to California in March 2017. Abandonment is a most serious allegation. See, e.g., Burak

v. Burak, 455 Md. 564, 648 (2017) (explaining that a finding that a parent has abandoned

a child may permit a non-parent to overcome the presumption that a child’s best interest

is served by being placed in the custody of the parent). In a related context, the Court of

Appeals has “defined child abandonment as: ‘Any wilful and intentional conduct on the

part of the parent which evinces a settled purpose to forego all parental duties and

relinquish all parental claims to the child, and to renounce and forsake the child

entirely.’” Wakefield v. Little Light, 276 Md. 333, 351 (1975) (quoting Logan v. Coup,

238 Md. 253, 258 (1965)).

The trial court credited Mother’s testimony that she moved to California “with the

goal of getting her life back on track for the benefit of her children.” The court

concluded that Mother was still “actively seeking to establish a relationship with [G.]”

even though Father and his family were attempting “to prevent [G.] from establishing a

meaningful relationship with Mother.” Notably, when Mother relocated, she did not

withdraw her claim for custody of G., but she continued to litigate it and eventually

35 gained visitation and access rights through the court’s interim order in April 2018. We

see no error in the court’s finding that Mother did not “voluntarily abandon[]” her son by

moving across the country while continuing to pursue access and custody through the

courts. “At no time could her actions be construed to evince a settled purpose to

relinquish all parental claims to [G.].” Id. at 351-52.

Father further contends that the court should have found that the parties had made

“an agreement” that G. “would stay in the care and custody of [Father] when [Mother]

moved back to California.” Father cites no evidentiary support for this particular

argument. Although the testimony indicated that both parties understood in March 2017

that G. would not be joining Mother in California, this evidence did not compel any

conclusion that the two of them ever reached any formal or informal agreement regarding

custody. The court did not err when it found that there were “no agreements between the

parties regarding custody or visitation issues.”

More generally, Father recounts other evidence that, he argues, demonstrates

Mother’s unfitness, such as: her failure to complete domestic violence classes as a

condition of her probation, her pattern of making false accusations against Father, her

sporadic work history, her lack of financial support for G., her reliance on her husband’s

income, her decision to enroll her children in daycare, and certain unflattering statements

she published on social media. Father argues that the court should have concluded that

he was the more fit parent, that his request for custody was more sincere, that he had

established a stronger relationship with G., that he was better able to maintain G.’s

relationships with family members, that his financial status was superior, and that moving

36 to California would unduly disrupt G.’s social and school life in New York. Collectively,

these arguments show, at most, that a fact-finder might have reached different

conclusions from the evidence or might have assessed the custody factors differently.

These arguments fail to show that any of the trial court’s findings were unsupported by

sufficient evidence or that the court’s reasoning was irrational.

As Mother aptly notes, Father’s argument depends upon characterizing the

evidence and inferences drawn from the evidence “in the light most favorable to

[Father],” without any deference to the court’s findings. Moreover, Father’s arguments

fail to directly address the crux of the trial court’s rationale. The trial court’s opinion

reveals that the court appreciated that both parents were suitable, but imperfect, options,

but the court believed that G.’s best interest would be served by living with the parent

who had better demonstrated a commitment to raising G. in the parent’s home. The

court’s assessment may “seem harsh to a loving [father],” but it was not an abuse of

discretion. Viamonte v. Viamonte, 131 Md. App. at 162.

Overall, we are not persuaded that the trial court’s findings were clearly erroneous

or that the court otherwise abused its discretion in making its custody determination. The

selection of a custodial parent who would serve the child’s best interests “was neither

easy nor clearcut” here, but it was one “for [the trial judge] to make in the exercise of his

discretion.” Bienenfeld v. Bennett-White, 91 Md. App. at 502-03.

JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE COUNTY AFFIRMED. COSTS TO BE PAID BY APPELLANT.

37 The correction notice(s) for this opinion(s) can be found here:

https://mdcourts.gov/sites/default/files/import/appellate/correctionnotices/cosa/3236s18cn.pdf