Wednesday, December 7, 2016

Scenes From A Non-Traditional Marriage

The Maryland Court of Special Appeals agreed with the lower court that a child's grandparents should have custody

After a five-day custody merits hearing, the Circuit Court for Montgomery County granted physical and legal custody of the sole minor child ("Child") of Natasha Burak ("Wife") and Mark Burak ("Husband") to Husband’s parents (individually, "Grandfather" and "Grandmother," and, collectively, the "Grandparents"). After a merits hearing relating to property distribution, the circuit court determined that money the Grandparents had contributed toward the purchase of Wife and Husband’s marital home was a gift conditioned on Husband and Wife’s continued marriage and use of the home, for the sole benefit of the Child, and because the divorce violated that condition, the Grandparents were entitled to recover those funds. After a child support hearing, the court ordered Husband and Wife to pay child support to the Grandparents. Wife challenges all of these decisions; Husband does not, and apparently has decided to align his interests with his parents. We dismiss one of Wife’s challenges for failure to provide a transcript, reverse the judgment in favor of the Grandparents as to the marital home proceeds, and otherwise affirm.

 The story

Husband and Wife were married on October 7, 2006, and Child was born on June 24, 2008. Husband testified at the custody hearing that one week before the wedding, Wife told him that she had been diagnosed with multiple personality disorder. On June 20, 2011, Husband and Wife, using $131,000 from the Grandparents as a down payment, purchased a $355,000 home in Silver Spring.

During the marriage, Husband and Wife were involved in a polyamorous relationship with a woman we’ll call M.  Husband and Wife met M in late 2008 when they all lived in the same apartment building. Husband testified that about two weeks after meeting M, he and Wife talked to her about beginning a sexual relationship with her. M testified that as part of this discussion, Wife told her that she had dissociative identity disorder or multiple personality disorder. Wife, however, testified that the sexual relationship with M started "[b]y [Husband] introducing it." Husband, Wife, and M met "[a] couple . . . to a handful [of] times a month" until M moved into the family home in 2012.

From September 2012 through February 2013, Husband, Wife, and M participated in counseling because Husband wanted M to stay in the house while Wife wanted M to leave. The sexual relationship between M and Wife had ended in December 2012. Wife testified at the custody hearing that she felt coerced by Husband, but offered no other evidence that Husband was coercing or influencing her to have a relationship with M. Husband and M testified that Husband never forced Wife to have a sexual relationship with M. 

During their marriage, Husband and Wife smoked marijuana and used several other drugs together and with M. They scheduled their drug use to allow Husband and Wife to coordinate care for the Child by the Grandparents at the Grandparents’ home. These sessions occurred "[a]nywhere from every other weekend to once a month, to sometimes it would be a few months." Wife testified that she only used drugs at Husband’s insistence, but offered no other evidence that Husband "coerced" or "influenced" her. Wife kept a calendar that indicated when she was "tripping." Both Husband and M testified that Wife was never forced to use drugs, and Husband testified that it was Wife’s idea that they use cocaine.

A footnote 

Wife also had a long-term sexual relationship with another man during the marriage. We have hesitated somewhat to include these details, since the divorce itself is uncontested. Ultimately, though, as we explain later, the chaos and instability of Child’s home environment mattered to the custody decision (although not the parents’ sexual preferences or orientations), and we need to paint an accurate picture of his circumstances.

The court affirmed as to custody

At the conclusion of the custody merits hearing, the court made several findings, then concluded from those findings that both Wife and Husband were unfit parents and that exceptional circumstances justified consideration of third-party custody. The court identified and relied on the McDermott standard, which states the presumption that parents should have child custody unless they are unfit or exceptional circumstances exist which make such custody significantly detrimental to the child. Wife disagrees, but we find that the record supports the court’s conclusions.

The court began by finding that Wife and Husband were "extremely selfish" and neglected the Child. The court found that Wife lied throughout the case about her drug use and testing, her relationship with M, her mental health, and Child’s school attendance following the Crisis Center referral, and that she failed to take responsibility for her actions. The court found "that [Wife] still takes [drugs] or she’s still ready to take them." And the court cited Wife’s unconcerned attitude about Child’s volatile and violent behavior, noting that she left Child with Grandmother after the September 4 incident at his school rather than engaging directly, and that she had failed to make any adjustments to meet Child’s needs. In particular, the court noted that it "didn’t see any real[] love or total attachment" between Wife and Child.

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2016/12/scenes-from-a-non-traditional-marriage.html

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