Y. B. v. T. B

1

Y. B v. T. B

No. 1650-2022

Court of Special Appeals of Maryland

December 1, 2023

UNREPORTED ^[*]

Circuit Court for Charles County Case Nos. C-08-FM-21-000522 and C-08-FM-21-000534

Leahy Albright, Raker, Irma S. (Senior Judge, Specially Assigned) JJ.

OPINION

Albright, J. Appellant, ("Mother"),^[1] and Appellee, ("Father"), are the unmarried parents of two minor children, J., born in 2020, and Z., born in 2021.^[2] Here, Mother challenges the 2022 Order for Contempt and Custody Modification issued by the Circuit Court for Charles County, an Order that awarded Father shared physical custody of, and tie-breaking authority as to, J. where, previously, Father had had only visitation with, and joint legal custody of J. Mother also challenges the circuit court's initial custody determination for Z. Finally, Mother appeals the circuit court's finding that she was in contempt for denying Father court-ordered visitation with J. and Z. We will affirm in part, and vacate and remand in part.

Mother's two questions for our review are:

1. Did the Circuit Court err in ruling that the parties have shared custody of the minor children on a 2-2-3 schedule[] with Appellee having tie-breaking authority?

2. Did the Circuit Court err in finding the Appellant in Contempt of Court when the Appellee'[s] visitation and access with the parties' minor children were halted due to a Protective Order being in place against the Appellee?

FACTUAL AND PROCEDURAL BACKGROUND

The crux of Mother's argument is that in reaching its custody and contempt decisions, the circuit court failed to consider and account for Father's abuse of Mother and their children and Mother's fear of Father. Specifically Mother contends that the circuit court "brushed aside" Father's actions, actions that she argues led to a final domestic violence protective order being in place during the pendency of the case below. Mother adds that because it "was a matter of safety" that she denied Father visitation, she should not have been found in contempt for having done so. We start by summarizing the proceedings below.

The litigation that prompted this appeal was not Mother's and Father's first trip to court over the custody of their children. In 2021, when J. was about a year old, but before Z. was born, Father and Mother initiated custody-and-visitation litigation in the circuit court.^[3] In July 2021, they reached a Parenting Plan Agreement ("Agreement") under which Mother was to have primary residential custody of J. and the parties were to share joint legal custody, among other provisions. In addition, Father was to have alternate weekends (Thursday through Sunday afternoon) with J., as well as a two-month "trial period" during which Father would have additional time with J. during the weeks when Father "[did] not have weekend parenting time." For the first month, Father would have J. on Mondays and Tuesdays, from 5:00 p.m. to 9:00 p.m.; for the second month, Father would have J. Wednesday overnight. At the conclusion of the trial period, the parties agreed that they would "decide what is convenient for each party and in the best interest of [their] child." This Agreement was incorporated but not merged into an order in August, 2021, about a month before Z. was born.^[4]

The parties operated under the Agreement for some time. Then, on April 4, 2022, after a hearing, the circuit court granted Mother a final domestic violence protective order against Father.^[5] The basis for the domestic violence protective order was that Father had placed Mother in fear of serious imminent bodily harm.^[6] Specifically, the circuit court found that Father had called Mother "multiple times being aggressive and ha[d] threatened" Mother. However, the circuit court made no finding that Father had abused, neglected, or otherwise posed harm to the minor children. Although the circuit court had issued a temporary protective order a week before, that temporary order also contained no mention of finding of abuse or neglect by Father. Nor did the court order the Department of Social Services ("DSS") to investigate any potential abuse or neglect.

The final protective order did not prohibit Father from visiting with his children, either. Instead, the circuit court ordered that Father's visitation with J. continue, and that Father have "visitation" with Z. without setting a specific schedule. To facilitate this visitation, the circuit court allowed Father to contact Mother and permitted Father to enter Mother's residence (the location she requested) for the purpose of picking up and dropping off the children. The circuit court awarded custody of J. and Z. to Mother, adding that custody was "to remain as set forth" in the parties' existing family law case.^[7]

Four days later, on April 8, 2022, Mother petitioned the circuit court to modify the existing custody order. Mother alleged that Father had made death threats towards her and was "not mentally capable of making positive decisions for the well-being of our children."^[8] She sought sole custody of both children, that Father have no overnight visitation, and that his visitation be supervised only, among other things.

Father counter-claimed for custody of both J. and Z., alleging that Mother had limited Father's access to J., ignored Father's attempts to communicate with J., and was no longer able to provide adequate housing for the minor children, among other things. Like Mother, Father sought residential custody of the children, in addition to other relief.

Father also filed a petition for contempt against Mother, alleging that she had "not allowed" him the access he was due under the existing custody order and had refused his attempts to communicate with the "child(ren)," among other things. Father asked that Mother be found in contempt and that he be awarded make-up parental access time, among other remedies. Trial on the custody and contempt claims was scheduled for October 20, 2022.

On August 14, 2022, Mother stopped allowing Father to have visitation with J. and Z. Mother would later testify that her decision to do so followed an incident that day that left her afraid of Father for herself and the children. For the children, the consequence was that they had no contact with Father from August 14, 2022 until the October 20, 2022 custody trial. The details of Mother's testimony about this incident are summarized below.

In September 2022, Father moved to modify the domestic violence protective order. He alleged that Mother was "refusing to allow [his] parental access with the children as dictated by the Protective Order...." Father requested access with the children "to include Wednesday nights and every other weekend from Thursday until Sunday [afternoon]." Father also asked that this modification motion be scheduled on the same day as the parties' custody motions, a request that the circuit court granted.

On October 20, 2022, the custody case, Father's contempt petition, and his motion for modification of the domestic violence protective order came for trial before the same circuit court judge who had issued the protective order. Mother testified on her own behalf and called her mother (the children's maternal grandmother) as a witness. Father testified on his own behalf. The parties stipulated to what Father's mother (the children's paternal grandmother) would say: that Father's home is a loving and wonderful home, that he is a good dad, and that she would have nothing negative to say about Father. Both parties introduced exhibits that were admitted.

Mother testified that she owned a three-story townhouse, and had been living there for about a year, with J., Z., two older children (16 and 15 years old) from another relationship, and her own mother (the children's maternal grandmother). According to Mother, Father had lived at her place until J. was about a year old. Mother testified that while Father lived with her, he had never helped her with "any kind of care" of J., such as late-night feedings or diaper changes. Mother nevertheless stated that she believed Father "does care for [their] children." When asked if she believed it to be in the best interest of J. and Z. to have a relationship with Father, Mother answered, "yes, they should have a relationship with their father."

As to Father's time with J., Mother did not deny that Father was seeing J. less often than their parenting plan envisioned. As for the Wednesday overnights available to Father during the "trial period," Mother testified that she and Father mutually decided to forgo those after the trial period because it put strain on both Mother's schedule as well as on the children's routine. Mother admitted that when Father asked for Wednesday overnights after the trial period, Mother declined Father's requests because the trial period was over.

When Z. was born, according to Mother, she informed Father, via text messages, that he and his family were welcome to visit Z. so long as the visitation would occur at her home. As to why she required Father to visit Z. at her home, Mother cited the COVID-19 pandemic ongoing at the time, as well as the fact that Z. was not included in the Parenting Plan Agreement. Mother denied having ignored Father's text messages regarding visitation during that time. Mother testified that Father had called many times a day to speak with the children, and that she allowed Father to talk to them "all the time." Mother also testified that except for a few occasions, Father did not pick up the children on Thursdays.

Although Mother testified about what she claimed was abuse by Father the circuit court did not credit it entirely. Mother claimed that Father would text and call (multiple times) saying that if Mother "ha[d] any...