Part II: Burak v. Burak, A Parent’s Right to Custody Requires Fitness NOT Perfection

Being a parent is not easy. Ask any parent and he or she will tell you. There are highs and lows. There are good days and there are bad days. Different factors such as maturity, education, finances, employment, and emotional and health issues, can make the joyous but scary experience of parenting difficult. Nevertheless, once a child is born, the responsibilities a parent(s) owes to that child, including caring for the child and providing a safe and healthy environment still exist.

In Burak v. Burak, the Court of Appeals of Maryland reversed the Court of Special Appeals’ ruling that Mrs. Burak, mother of a minor child seeking custody, was unfit and that exceptional circumstances existed to permit Child’s paternal grandparents to challenge Mother’s right to custody based on the best interest of the child standard. Mrs. Burak was granted custody of her child.

There is a long-standing recognition in the law that parents have a fundamental right to raise their children and make decisions regarding their care and well-being. The law provides a presumption, meaning an automatic preference, that parents have custody, unless provided reasons to show that the preference is not appropriate in a particular case.

This fundamental right permits parents to benefit from a higher standing/position under the law in comparison to a third-party, a person who is neither a biological nor an adoptive parent, who seeks to have the child removed from the parent’s custody to the custody of the grandparent.

A brief summary of the facts of the case and the Court of Special Appeals’ ruling is necessary to understand how the Mother, the plaintiff, was able to regain custody of her minor son after being found unfit by both the circuit court and the intermediate appellate court.

  • Parents married in 2006
  • Child born in 2008
  • From 2009 - 2012, parents used drugs and had a consensual relationship with a woman
  • Parents coordinated activities, drug use and sexual incidents, so that parties would be able to take child to Grandparents so child would not be present in the home
  • 2011 Parents purchased and home
  • 2012 woman moved into home
  • Breakdown in the relationship
  • July 11, 2013, Mother filed complaint for absolute divorce

The circuit court subsequently ruled that Mother was unfit and extraordinary circumstances existed to overcome the presumption (protection provided by both the United States and Maryland constitutions) that Mother be granted custody. The court found that it was in the Child’s best interest to be in the Grandparents’ custody. Upon Mother’s appeal, the Court of Special Appeals affirmed the lower court’s rulings.

Court of Appeals’ Analysis

Factors the trial court may consider when determining whether a parent is unfit:

  • Whether the parent’s actions demonstrate an absence of concern and care for the child’s well-being such that the parent’s actions (or failure to act) can be viewed as an unwillingness to be a parent to the child

  • Whether the parent has failed to provide the child with adequate love, care, and guidance

  • Whether the parent, him/herself, has harmed or allowed another person to harm the child, physically, sexually, or emotionally

  • Whether the parent’s health, including mental or emotional issues, prevents parent from effectively parenting

  • Whether the parent, in any other respect, has indicated a lack of interest/concern in performing parental obligations

  • Whether the parent has engaged in behavior that negatively impacts the child’s progress - socially, emotionally, and intellectually

The Court of Appeals’ ruling that the Mother was, in fact, a fit parent whose right to custody of her minor son should not have been able to be challenged by the paternal grandparents emphasizes two important points. First, parents’, biological or adoptive, right to custody is highly protected under the law. Therefore, it is no easy task for this protective shield to be penetrated by a third party, even when that individual is a grandparent who has been significantly involved in his or her a grandchild’s life. Second, in terms of custody, the courts are not looking for parents who are perfect; courts only ask that parents be a consistent presence in their child’s life and actively work on becoming the parent a child needs.

Fred Antenberg is an attorney with over 30 years’ experience practicing Family Law in Howard County and surrounding counties in Central Maryland. If you have custody concerns and wish a Free Initial Consultation, please contact him at (410) 730-4404.