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Kimberly Boswell v. Robert G. Boswell - No. 4, 1998 Term PARENT/CHILD VISITATION -- Parental visitation should not be restricted or limited because of the parent's relationship with a non-marital partner unless there is a showing of actual or potential adverse impact to the child by contact with a parent's non-marital partner.

Circuit Court for Anne Arundel County Case # C-94 16022 DV

IN THE COURT OF APPEALS OF MARYLAND No. 4 September Term, 1998 ________________________________________

KIMBERLY BOSWELL v. ROBERT G. BOSWELL

________________________________________

Bell, C. J. Eldridge Rodowsky Chasanow Raker Wilner Cathell JJ. _______________________________________ Opinion by Chasanow, J. Cathell, J., concurs ________________________________________ Filed: December 18, 1998

In the instant case, Kimberly Boswell (Petitioner) asks us to clarify the standard a court should apply in determining the extent of restrictions on parental visitation of children in the presence of non-marital partners. Petitioner claims that the "best interests of the child" standard should apply and that the Court of Special Appeals erred in applying an "actual harm" standard. Robert Boswell (Respondent) contends that the Court of Special Appeals did apply the best interests of the child standard, correctly coupling this standard with the need for a factual finding of actual harm in order for parental visitation to be restricted. For the reasons set forth below, we affirm the judgment of the Court of Special Appeals and hold that the correct standard to be applied is the best interests of the child, with visitation being restricted only upon a showing of actual or potential harm to the child resulting from contact with the non-marital partner.

I. This appeal arises from an order of the Circuit Court for Anne Arundel County, restricting Respondent's visitation with his children. Respondent appealed to the Court of Special Appeals, which vacated the judgment of the circuit court, including all of the visitation restrictions. See Boswell v. Boswell, 118 Md. App. 1, 701 A.2d 1153 (1997). Petitioner filed a motion for reconsideration and for a stay, which the Court of Special Appeals denied. Petitioner then petitioned for certiorari to this Court, challenging only that portion of the Court of Special Appeals order vacating the prohibition on visitation in the presence of Respondent's non-marital partner. We granted certiorari and affirm the

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judgment of the Court of Special Appeals.

II. This Court concurs with the procedural history and facts of this case as presented in the opinion of the Court of Special Appeals. Boswell, 118 Md. App. at 5-8, 11-22, 701 A.2d at 1154-56, 1158-63. For the purposes of this appeal, we will summarize only the pertinent facts and circumstances. Robert Boswell and Kimberly Boswell were married in May 1986. Two children were born of the union, son Ryan born in 1988 and daughter Amanda born in 1991. In August 1994, the parties separated after Mr. Boswell told his wife that he was homosexual. In February 1995, Mr. Boswell began living with Robert Donathan, with whom he began an intimate relationship after he and Ms. Boswell separated. Ms. Boswell filed the initial complaint for limited divorce on October 5, 1994. On January 20, 1995, Judge James Cawood of the Circuit Court for Anne Arundel County ordered visitation between Mr. Boswell and his children each Wednesday evening and every other weekend. On February 2, 1995, the Boswells were ordered to meet with the Department of Social Services, which was to report to the court regarding custody and visitation. Mr. Boswell filed a counterclaim for absolute divorce in July 1995 and Ms. Boswell filed an amended complaint in August 1995. Even though the parties filed a pretrial order on December 12, 1995, stating that the only contested issues were alimony and counsel fees and projecting a one-day trial, no final

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agreement was entered before trial. Thus, the trial over which circuit court Judge Lawrence Rushworth presided lasted five full days (March 12, 13, 14, and April 1, 4, 1996). Most of the testimony concerned disputes over the value, possession, and disposition of various personal property items. Both parties agreed that primary custody was to remain with Ms. Boswell. As to visitation, on April 1, 1996, Mr. Boswell moved for recusal of Judge Rushworth based on statements he made during the conference that indicated a predisposition to limit the father's visitation, specifically permitting no contact between Amanda and Ryan and Mr. Donathan. Mr. Boswell claimed these statements demonstrated undue prejudice toward his case. The court denied the motion. On April 5, 1996, the parties reached agreement on the financial issues and the judge ruled from the bench on visitation. In its oral opinion, the court awarded sole custody to Ms. Boswell and severely curtailed Mr. Boswell's visitation. In its written order filed on April 26, 1996, the court limited Mr. Boswell to visiting with his children every other Saturday from 8:00 a.m. to 8:00 p.m., every other Sunday from 11:00 a.m. to 8:00 p.m. and every Wednesday from 3:00 p.m. to 8:00 p.m. on school days and from 8:00 a.m. to 8:00 p.m. on non-school days. The order further prohibited any overnight visitation and visitation with the children in the presence of Mr. Donathan or "anyone having homosexual tendencies or such persuasions, male or female, or with anyone that the father may be living with in a nonmarital relationship." The trial court placed these limitations on Mr. Boswell's visitation even though they were not requested by Ms. Boswell. Indeed, when Ms. Boswell testified and was asked her

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opinion about the children's visitation with their father, she replied "I think that they should visit him. *** [E]very other weekend and in the mid-week is fine." She also agreed with the recommendation of Marcia Kabriel, the court-appointed social worker, that Mr. Boswell should have visitation with the children one week per month during the summers. Furthermore, Ms. Boswell never testified that she wanted Mr. Boswell to exclude Mr. Donathan from visitation, nor did she allege that Mr. Donathan's presence during visitation was harmful to the children. Visitation only became a disputed issue when Ms. Kabriel recommended an increase in Mr. Boswell's visitation, which he then asked the court to grant, and Ms. Boswell disagreed with some of the social worker's suggestions. Specifically, Ms. Boswell did not want any overnight visits during the week nor did she want summer visits scheduled for consecutive weeks and no visitation in August due to her own vacation plans. The trial judge primarily based his visitation order on videotaped in camera interviews with Ryan and Amanda, which yielded no definitive response from either child as to how they felt about visitation in the presence of Mr. Donathan.1 The court made the following

The children's answers to the judge's questions as to whether they preferred visitation without Mr. Donathan present were as follows: "[Amanda:] I just want to visit my dad. Not Mr. Rob [Donathan]. Only sometimes I want to visit Mr. Rob. [The Court:] Sometimes you want to visit him? So you get along with Mr. Rob? [Amanda:] Uh-huh. [Ryan:] She does. I don't.

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comments from the bench concerning Mr. Boswell's visitation with his children: "[W]here there is a ... paramour involved.... I have often, time and time again, restricted visitation. I think that's only appropriate. *** [I will hold] down the ... visitations of both the weekend and Wednesday and [restrict] during this period any overnight visitation. Clearly the Court is convinced that ... there is a relationship, at least up until this time, and no concern to change before this time, that [Mr. Boswell] is sleeping with ... another person without the cloak of a marital relationship. *** [T]here will be no visitation in the home where there is ... Donathan. Or any other situation that goes to a relationship that isn't condoned. *** Mr. Boswell, there may come a time when you would elect to have someone else stay at the home with you, perhaps a female companion or another male companion, but my order is that the children are not to visit you under those circumstances. So if it means taking them to some other place, some neutral place, then that's the Order of this Court, and that's a strict order [until] it is clear to me that we'll have no situation where you have a livein companion." (Emphasis added). On August 22, 1996, upon a second request by Mr. Boswell's counsel, Judge Rushworth recused himself from any additional proceedings in this case. Mr. Boswell appealed to the Court of Special Appeals, with his principal argument being that the trial

[The Court:] Okay. But, Ryan, you're certain about that? You would rather not visit with your dad when Mr. Rob is there? Is that.... [Ryan:] Yeah, but I don't want him to move away, because he has a dog and I really like the dog."

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court failed to make any findings of fact upon which to base its visitation order. The Court of Special Appeals entered a judgment in Mr. Boswell's favor on October 29, 1997, vacating the prohibition against overnight visitation. The court determined that the trial judge had erroneously concluded that Dr. Kay Standley objected to all overnight visitation and that neither Ryan nor Amanda wanted to visit overnight, when in actuality it was only Ryan who felt this way. The court remanded this issue to the trial court to determine if it would impose the same restriction. Regarding the prohibition against visitation in the presence of Mr. Donathan, the court vacated it without remand for two reasons: "The court articulated no reasons for the restriction other than the <inappropriateness' of the relationship, and it failed to state on the record how the children might be harmed by exposure to the relationship. Given the testimony of Kabriel, Standley, Officer Parsons, and Officer Bauman, we hold that there was no evidentiary basis for the court to conclude the relationship was harmful to the children. Hence, the court could not have articulated any harmful effect, since there was no evidence to support such a finding. There was therefore no showing that the restriction was necessary to prevent any adverse impact on the children." Boswell, 118 Md. App. at 33-34, 701 A.2d at 1169. The court also vacated the remainder of the visitation prohibitions without remand. Ms. Boswell filed a motion for reconsideration and a for stay, alleging that the Court of Special Appeals had incorrectly applied an "actual harm" standard rather than the best interests of the child standard to the visitation issues. The motion and stay were denied on December 5, 1997, with the court maintaining it had applied the correct standard, that being the best interests of the child with a required factual showing of actual harm in order for

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visitation to be restricted. In its opinion denying the motion for reconsideration, the court stated: "The distinction appellee attempts to draw between the `actual harm' standard and the <best interest of the child' standard is illusory." Ms. Boswell then petitioned for, and was granted, certiorari to this Court solely on the issue regarding the prohibition on visitation in the presence of Mr. Boswell's partner, Mr. Donathan. Specifically, we are asked to clarify the standard a court must apply in determining the extent of restrictions on parental visitation of children in the presence of non-marital partners. Ms. Boswell claims the "best interests of the child" standard should apply and that the Court of Special Appeals erred in applying an "actual harm" standard. Mr. Boswell contends that the Court of Special Appeals did apply the best interests of the child standard, correctly coupling this standard with the need for an evidentiary showing of actual harm in order for parental visitation to be restricted. In affirming the Court of Special Appeals' judgment, we want to clarify that the Court of Special Appeals' judgment should not be interpreted as articulating an "actual harm" standard that is separate and distinct from the best interests of the child standard. We seek to clarify that only one standard is used in determining whether to restrict parental visitation in the presence of non-marital partners, bests interests of the child, but we also want to emphasize that when a court is engaging in a best interests analysis, reasonable maximum exposure to each parent is presumed to be in the best interests of the child. Before we begin our analysis, it is useful to briefly summarize the role the following individuals have played in the proceedings to date.

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A. Robert Donathan Robert Donathan has been Mr. Boswell's live-in partner since February 1995. He has been present during Ryan and Amanda's visitation with their father, with the exception of the period when Judge Rushworth's order was in effect from April 1996 until December 1997. During the trial, Mr. Boswell testified that he and Mr. Donathan slept in the same bedroom when the children came to visit, but when he learned that this upset Ryan, the two began sleeping in separate bedrooms during visitation. Mr. Boswell and Mr. Donathan agreed that Mr. Donathan would not actively discipline the children and this arrangement was generally followed. Basically, Mr. Donathan's role with Ryan and Amanda during visitation was to play with them and participate in outings and activities that they had planned with their father.

B. Marcia Kabriel Marcia Kabriel was the court-appointed social worker who investigated the Boswell's situation and made a recommendation concerning custody and visitation in an October 30, 1995, report. At trial, she testified that after conducting over 20 interviews with the parties, her conclusion was that Ryan and Amanda had bonded well with both parents. Ms. Kabriel recommended that the children's primary residence remain with Ms. Boswell, and that Mr. Boswell be granted liberal visitation to include a week with the children each of the summer months along with every other weekend and Wednesday evenings. Although Ms. Kabriel did not initially suggest overnight visitation on Wednesdays, she later recommended this due

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to the difficulties the children were experiencing in dealing with their parent's separation and the acrimony between them. Ms. Kabriel indicated that while both children were "confused" by their father's relationship with Mr. Donathan, Amanda was adjusting fairly well but Ryan was having difficulty accepting it. When pressed by Ms. Boswell's attorney to clarify whether the children were confused due to the homosexual aspect of their father's relationship with Mr. Donathan, Ms. Kabriel stated: "[A]ny kind of a relationship, heterosexual or homosexual, is going to be confusing and impact on the children. *** The children would have been confused if it had been a man or a woman. The children routinely in the first year or two after a separation and divorce have hopes that their parents will reconcile. They want them together and so the whole situation would be confusing to them." (Emphasis added). When asked whether it would be better for Ryan and Amanda if Mr. Donathan were absent whenever they visited their father, Ms. Kabriel replied: "I think that if the parents could begin to work together and communicate and plan for these children and reduce the tension between--that exists between the parents, this makes more sense in terms of [Donathan] has been in these children's lives now for over a year and I don't think that he's just going to go away. So in a sense the children have already had their experience with him and have a relationship with him."

C. Dr. Kay Standley

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Dr. Kay Standley is a child psychologist with whom the Boswell children were in therapy. She began seeing Ryan in January 1995 and Amanda in April 1995, both on a weekly basis, and she was still seeing them at the time of trial. In testifying as an expert witness for Ms. Boswell, Dr. Standley stated that Amanda's concerns were related to the animosity between her parents, but that Ryan's adjustment to the separation was more problematic due to his Attention Deficit Disorder, poor self-image and difficulty with peer relationships. When questioned about how the temporary visitation schedule was working, Dr. Standley testified that "the weekend visits seem to have become, in the last few weeks, more pleasant and the children don't ... seem to be as distressed." In testifying about the "during the week" visitation, Dr. Standley stated that while spending the night on Wednesdays was too disruptive "certainly Mr. Boswell would spend some time on a Tuesday or a Wednesday night because ... for the children, that's a very long period of time. They shouldn't go a long time without contact with both parents." Indeed, Dr. Standley expressed her opinion that in situations such as Ryan and Amanda's, she was "very much in favor of both parents having a great deal of contact with the [children]." In response to a question about the effect Mr. Boswell's homosexual relationship with Mr. Donathan was having on the children, Dr. Standley testified that Ryan was distressed and concerned. However, when asked whether it would be better for Ryan and Amanda if Mr. Donathan were not present during visitation, she focused her answer on the effect that any relationship of Mr. Boswell's, heterosexual or homosexual, would have on the children:

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"In any situation like this as the children adjust to a parental separation, divorce and the realignment of parents with new partners, it's very, very important whether that is the same sex or an opposite sex partner that there be a very slow period of exposure to the -- to the children of that -- that new partner. That should proceed deliberately and very slowly. *** [C]hildren in a situation like this really need to be reassured that they have the affection and the continuing relationship of each parent ... and that -- that no other person, no other relationship will -- will interfere with that." (Emphasis added). Regarding the children's adjustment to their father's relationship with Mr. Donathan, Dr. Standley stated that while their father's new relationship was initially difficult for them, especially considering how quickly they were exposed to it, she acknowledged "they seem to be adjusting a little bit better now."

III. A. The Best Interests of the Child A parent has a fundamental right to the care and custody of his or her child. The United States Supreme Court has upheld the rights of parents regarding the care, custody, and management of their children in several contexts, including child rearing, education, and religion. See Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15

(1972)(overturning a mandatory schooling law in the face of Amish claims of parental authority and religious liberty); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972)(discussing the right of parents to raise their children); Prince v. Massachusetts,

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321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645, 652 (1944)(observing that "the custody, care, and nuture of the child reside first in the parents"); Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655, 1660 (1942)(stating the right to rear a child is encompassed within a parent's "basic civil rights"); Pierce v. Society of Sisters of Holy Names, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925)(sustaining parents' authority to provide religious schooling against State requirements of public school attendance); Meyer v. Nebraska, 262 U.S. 390, 43 S.Ct. 625, 67 L.Ed. 1042 (1923)(upholding parental authority to have children taught in languages other than English). The Supreme Court's long history of affording protection to parents in the realm of child rearing and family life was acknowledged in Wolinski v. Browneller, 115 Md. App. 285, 299, 693 A.2d 30, 36-37 (1997): "A parent's Fourteenth Amendment liberty interest in raising his or her children as she sees fit, without undue interference by the State, has long been a facet of that private realm of family affairs over which the Supreme Court has draped a cloak of constitutional protection." In accordance with the Supreme Court, Maryland has declared that a parent's interest in raising a child is a fundamental right that cannot be taken away unless clearly justified. In re Adoption No. 10941, 335 Md. 99, 642 A.2d 201 (1994). The Court of Special Appeals, in In re Adoption, 103 Md. App. 1, 12, 651 A.2d 891, 897 (1994) stated: "This right is in the nature of a liberty interest that has long been recognized and protected under the state and federal constitutions." In the context of most family law disputes over children, the State's interest is to

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protect the child's best interests as parens patriae, which is in accord with the State's interest in protecting the health, safety, and welfare of its citizens. "Parens patriae" refers to the "principle that the state must care for those who cannot take care of themselves, such as minors." BLACK'S LAW DICTIONARY, at 1114 (6th ed. 1990). In Maryland, the State's interest in disputes over visitation, custody, and adoption is to protect the "best interests of the child" who is the subject matter of the controversy. Wolinski, 115 Md. App. at 301, 693 A.2d at 37. We have described the best interests of the child standard as being "`of transcendent importance'" and the "`sole question'" in familial disputes; indeed, it is "therefore not considered as one of many factors, but as the objective to which virtually all other factors speak." Taylor v. Taylor, 306 Md. 290, 303, 508 A.2d 964, 970 (1986)(quoting in part from Ross v. Hoffman, 280 Md. 172, 175 n.1, 372 A.2d 582, 585 n.1 (1977)). The best interests of the child standard has long been applied by Maryland courts to resolve family law disputes. In Pangle vs. Pangle, 134 Md. 166, 170, 106 A. 337, 338 (1919), a child custody case dating back almost 80 years, this Court stated: "The primary concern in cases of this nature is to make such an award of the custody of the child as will promote its highest welfare." Similarly, 10 years later this Court reaffirmed its use of the best interests of the child standard in custody cases when it declared: "[T]he paramount consideration [is] what will be for the best interest of the children and most conducive to their welfare." Carter v. Carter, 156 Md. 500, 505, 144 A. 490, 492 (1929). While these early cases apply the best interests standard in the context of child custody determinations,

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later cases have held that visitation is governed by the same principles because visitation "is considered to be a form of temporary custody." Beckman v. Boggs, 337 Md. 688, 703 n.7, 655 A.2d 901, 908 n.7 (1995). See also Skeens v. Paterno, 60 Md. App. 48, 61, 480 A.2d 820, 826 (1984)(observing that the ultimate test for custody and visitation is the best interests of the child). Thus, while a parent has a fundamental right to raise his or her own child, this Court has held that the best interests of the child may take precedence over the parent's liberty interest in the course of a custody, visitation, or adoption dispute. "We have made clear ... that the controlling factor in adoption and custody cases is not the natural parent's interest in raising the child, but rather what best serves the interest of the child." In re Adoption No. 10941, 335 Md. at 113, 642 A.2d at 208. The best interests standard does not ignore the interests of the parents and their importance to the child. We recognize that in almost all cases, it is in the best interests of the child to have reasonable maximum opportunity to develop a close and loving relationship with each parent. As to visitation, the non-custodial parent has a right to liberal visitation with his or her child "at reasonable times and under reasonable conditions," but this right is not absolute. Myers v. Butler, 10 Md. App. 315, 317, 270 A.2d 341, 342 (1970). As stated in the wellknown treatise, 2 WILLIAM T. NELSON, DIVORCE AND ANNULMENT

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