226 A.3d 372
Md. Ct. Spec. App.2020Background
- In 2015 Mother (Kaycee Gerstman) was found guilty of second-degree assault of Father and later pled guilty to neglect of their then‑one‑year‑old son, G.; the child was removed and placed in Father’s care and later primarily with paternal grandparents in New York.
- Father (Frank Gizzo) filed for sole legal and physical custody in August 2015; proceedings were stayed during juvenile/child‑protective matters; interim custody (April 2018) awarded Father primary custody and limited supervised in‑person visits for Mother, with FaceTime access.
- Mother relocated to California in 2017, married, established a stable home, and helped raise three young children there; she contested custody and sought primary custody of G.
- A two‑day custody trial occurred in January 2019. The circuit court found reasonable grounds under FL § 9‑101 to believe Mother had neglected G., but specifically found there was no likelihood of further child abuse or neglect and awarded Mother sole legal custody and primary physical custody.
- Father appealed, arguing (1) the trial court failed to consider and make required findings under FL § 9‑101.1 concerning Mother’s assault on Father, and (2) the custody award was an abuse of discretion given Mother’s past neglect and other conduct. The trial court denied a stay and clarified it had considered § 9‑101.1 and fashioned protective arrangements (e.g., geographic separation, airport exchanges).
Issues
| Issue | Plaintiff's Argument (Gizzo) | Defendant's Argument (Gerstman) | Held |
|---|---|---|---|
| Whether the trial court legally erred by failing to consider FL § 9‑101.1 (evidence of abuse of the other parent) | Trial court did not specifically address § 9‑101.1 or make required findings regarding Mother’s 2015 assault on Father; therefore the order is deficient | Trial court expressly applied § 9‑101, found no likelihood of future child abuse/neglect, and later clarified that it considered inter‑parent abuse and made protective arrangements | No legal error: court made the § 9‑101 findings and, in an order denying the stay, explained it had considered § 9‑101.1 and tailored protections; affirmed |
| Whether awarding Mother sole legal and primary physical custody was an abuse of discretion (best‑interests analysis) | Mother remains a risk (past neglect, incomplete probation requirements, credibility issues, false accusations, alleged abandonment by moving); Father is more fit | Mother showed rehabilitation (Chrysalis House), stable home and ongoing parenting of other children, genuine desire to reunite; Father delegated day‑to‑day parenting to grandparents | No abuse of discretion: trial court’s credibility and factual findings were supported by the record and reasonably applied best‑interest factors; custody award affirmed |
Key Cases Cited
- In re Adoption No. 12612 in Circuit Court for Montgomery Cty., 353 Md. 209 (1999) (§ 9‑101 requires specific finding that no likelihood of further abuse/neglect before awarding custody or unsupervised visitation)
- In re Yve S., 373 Md. 551 (2003) (parent with prior abuse bears burden to show no likelihood of recurrence; standard is preponderance; finding need not be impossible to satisfy)
- Taylor v. Taylor, 306 Md. 290 (1986) (describes custody best‑interest factors and analytical approach)
- Burak v. Burak, 455 Md. 564 (2017) (standards of appellate review for custody factual findings and discretion)