Hosain v. Malik

A.2d Malik) (fka Joohi Q. HOSAIN v. MALIK. Anwar Term, 228, Sept. 1995. No. Appeals Maryland. Special

Court of Feb. 1996. Rees, Towson, Natalie H. for appellant. (Leslie

Linda Haspel B. Haspel Meiselman, Fried and & brief) Chartered, on the Rockville (Angela R. White of Balti- brief) more, on the appellee, for minor child. WILNER,

Argued C.J., before MOYLAN, BLOOM, FISCHER, DAVIS, MURPHY, HOLLANDER, JJ., and ALPERT, E. (Retired), PAUL Judge specially assigned.

DAVIS, Judge. Malik) Q. Joohi Hosain (formerly Joohi appeals from an order of the J.) Circuit Court (Kahl, County Baltimore entered a custody dispute which appellant, mother, Malik, and appellee, father, Anwar have been battling for sole their minor By order, child. this the circuit court declined to jurisdiction assume in the matter grant- ed comity to various Pakistani court orders that granted sole unrestricted custody of the appellee. child to questions Four presented were originally on appeal. Appellee presented the first question, matter, a threshold presented the next three issues. We restate these issues as follows:

I. Should this Court appellant’s dismiss appeal because

appellant allegedly included and relied on matters in the appendix of her brief that were extraneous to this appeal?

II. Did the circuit court its by abuse discretion proceed-

ing with a remand hearing the absence of the child’s attorney?

III. Did the circuit court err determining that appellant prove

failed to that Pakistani law was not in substan- tial conformity Maryland with law?

IV. Did the circuit court err in not assuming jurisdiction

under the Uniform Child Custody Jurisdiction Act? three-judge panel a argument before to oral

Subsequent counsel 6, 1995, issued an Order to on October this Court banc, 10, Court, January on en this before appear Paki- whether the deciding “In query, address specifically standard, of the child the best interest applied stani Court focus on the particular court’s determination should the trial religion and mores of Pakistan culture, and customs to be interest standard or, alternatively, is the best parties law, i.e., American cultures Maryland on determined based in the original questions the four We answer and mores?”. deter- lower court properly and we hold negative Pakista- relevant applying interest standard mined the best therefore, We, affirm customs, and mores. ni culture circuit court. order of the

FACTS involving custody dispute and bitter child long This is a long Pakistan. Not too Maryland of courts both orders before this Court dispute and their were these ago, parties 521, (1994), which Malik, Malik v. 30, say, with 1994. Needless on March we decided to this again once have returned raging, parties battle still three-judge argument before oral Subsequent Court. Court, hearing bane determined that en it was panel of this for an en the matter in The Court set necessary. would be out of the directly arise appeal The facts of this hearing. banc Malik. following proceedings this case recite the facts of background, we

As a matter of in Malik: as stated of their battling are parties appeal to this Karachi, (the on child), Pakistan was born who

daughter ... a citizen father 11,1983____ child’s September [T]he Pakistan, mother, also a citizen of child’s of Pakistan. [T]he remain in permits her to a student visa that has obtained were mar- The parties basis. country temporary together September until ried on lived June Joseph’s attending time child was St. at which in Karachi. School Convent 15, 1990, September

On left the [the mother] marital with parents. home and moved in her She took the child with her. sued for custody. [The father] When moth- [the lawsuit, learned of fled country, er] she [the father’s] thereafter, taking the her. [the child with Soon mother] moved into of a man with she the home whom has continued to live and she who by whom conceived a son was born in 1991. represented by [The counsel mother] refused, however, Pakistani custody proceeding. She appear in person. obey She also refused the judge’s produced. order that the child appears be It that the judge mother], did consider a statement by written submitted [the awarded custody [the but father].

Having legal custody daughter, obtained of his fa- [the set her. ther] out to find hid the [The child from mother] years. for two In [the father] over [the father’s] private finally detectives were able to the child locate County. [the mother] Baltimore she Once realized that she had been discovered and that father] was about [the seek enforcement of the order him granting custody his daughter, filed a complaint [the mother] Circuit Court for County, requesting Baltimore custody child and a restraining against [the order At the conclusion of father]. hearing, an emergency the trial decided that judge Circuit jurisdiction Court for Baltimore had County determine custody, custody that the Pakistani order was not comity, entitled to that temporary grant- should be mother], ed to [the be enjoined [the should father] from going child, within three hundred feet [the or their mother] residence. 523-24,

Id. at 638 A.2d 1184. The parties point out to this that appellant Court fled to the U.S. from Pakistan with the shortly after—appellee petition filed a for before—not In regard, Pakistan. stand corrected. Additionally, appellant has since married the man whom she had a son. Malik, presented following the father question

our review: “Did exercising jurisdiction the chancellor err in country?” in a pending foreign were custody proceedings

when 525, we held that the circuit Id. at Although A.2d 1184. the Uniform jurisdiction state” under did have “home (codified (UCCJA) in Md.Code Act Custody Jurisdiction Child (1991)), not affirm the Ann., § 9-201 to 9-224 we did Fam.Law custody comity to the Pakistani grant refusal to circuit court’s Id. order.

Rather, “the court should decline held that circuit the Pakistani court persuaded that jurisdiction exercise unless (1) of the child standard the best interest apply either did not (2) father], or at its arrived custody awarded [the when it (whether substantive, evidentiary, by a law applying decision Maryland as to public policy contrary so procedural) the trial.” Id. at 533- outcome confidence in the undermine 34, the case to Accordingly, 1184. we remanded 638 A.2d Id. at evidentiary on these issues. hearing for an circuit court forth the law for the doing, In so we set 638 A.2d 1184. the evidence whether apply determining circuit court to Pakistani be introduced demonstrated that would Mary- with conformity law in “substantial apply court did not addition, 534-36, Id. at 1184. In we held 638 A.2d land law.” matters prove on the mother to these that the burden was Id. at A.2d 1184. of the evidence. preponderance 14, 1994, parties returned to Accordingly, November with our hearing. remand Consistent court for the circuit Malik, were appellee and for both holding counsel examine evidence and to introduce prepared and present its application child law and regarding custody witnesses child, how- for the minor Court-appointed Pakistan. counsel ever, hearing. explained for the As counsel appear failed Court, the minor child was to this “[c]ounsel her brief date, to note it in her calendar hearing but failed aware of hearing.” out of the state at the time and was lawyer. the child’s continued in the absence of hearing expert with an hearing came to the armed party Each concerning Appellant’s the law of Pakistan. testify witness to (no relation was Dr. Hafeez Malik expert witness science political professor Dr. Malik is parties). involves Pakistani specialty Dr. Malik’s University.

Villanova Dr. Malik testi- it relates to other nations. foreign policy political, on Pakistani he has conducted research fied that reveals The record social, issues. legal, constitutional knowledge about expert deal of great Malik has a that Dr. research, membership through his policies, and its Pakistan however, Malik, associations, Dr. publications. various Pakistani court orders he did read the lawyer. Although not a case, only a limited testimony Dr. Malik’s indicated in this Dr. conceded law. Malik knowledge of Pakistani matters. was not specialty that his area and Wards Act acknowledged that the Guardians Dr. Malik (the Act), custody child governing a British enactment matters, governs law that part an of Pakistani accepted is a Pakistani requires matters and custody specifically minor.” Dr. Malik court to consider the “welfare of the that, test, in of the welfare of the minor recognized application court to consider such factors as the child’s the Act directs the sex, the religion, capacity guardian, character and age, minor, wishes, kin to the guardian’s parental nearness the existing previous relation- preference, any the child’s and minor or his or her ship proposed guardian of the with the property. that, although “lip paid testified service” was to

Dr. Malik test, really the of the child the Pakistani court did not welfare dispute, it to his satisfaction in the instant but rather apply parent focused on one or two factors—fitness Dr. Malik religion. Throughout testimony, his characterized “one-sided,” proceedings Pakistan as because the Paki- appellant’s dispute stani court never considered side Malik, Dr. proceedings. due to her absence from the howev- er, right appear conceded that at all times had the on her produce before the Pakistani court and witnesses and cross-examine but elected not to do so. appellee, behalf retired Pakistani Justice Sar- Appellee’s expert witness was practiced law for Dogar. Dogar dar Muhammad Justice appellate and was Pakistani years Pakistan twenty-five Although Justice years. and one-half twelve judge cases, say he did many child had not handled Dogar be well versed he judge required appellate that as the Pakistani court orders. He read of law. with all areas gov- are custody disputes testified that child Dogar Justice enacted the minor” standard as the “welfare of erned to various Pakistani courts look explained Act. He child, including the welfare of determining factors of the child’s desire parents, and fitness of character opportunities affecting the preference, the child’s parents, sex, parental abandon- child, age, the child’s future life of the abuse, relationship with the ment, and the child’s religion, custodian. proposed law,” “personal recognized that attention Dogar

Justice on Hinduism and religious law based he described as which Act. Accord- Islam, to be considered is another factor law,” things, “personal among other ing Dogar, Justice custody of get the mother or father should whether dictates child, sex of the child. depending age a set of experts indicated testimony both and societal doc- religious rules based on parental preference trine.1 addition, religion that the child’s Dogar explained Justice he stated that very important Specifically,

is a factor. intend- not be to an individual granted a child will of Moslem Similarly, as a non-Moslem. Justice raise the child ing to will not be custody a non-Moslem child Dogar testified the child as a intending to raise to an individual granted Moslem. orders, Dogar the Pakistani Justice

From his review of in applied of the child standard was that the welfare believed the Pakistani court did not opined also Pakistan. He natural was because a appellant’s allegations. This consider right aspect ‘‘personal was referred to of the law” 1. This "Hazanit,” fully more below. which shall discuss a case good she did not have drawn that was presumption Pakistan, having in hearing at the up her failure to show from Had elected appellant notice thereof. proper received wit- stated, presented she could Dogar Justice appear, witnesses. and cross-examined nesses of coun- at the conclusion hearing day,

Subsequent ruling, fol- court issued a bench the circuit arguments, sels’ After days later. order several by lowed a formal written qualified more expert commenting appellee’s expert, than custody appellant’s law issues of Pakistani a prove by “failed to appellant court concluded that the circuit Special that which the Court of of the evidence preponderance prove, she must and this indicated Malik Appeals [in ] jurisdiction its this case.” must decline exercise custo- court, therefore, to the Pakistani granted comity circuit order. dy a written order dated Decem-

The circuit court also issued 12, 1994, prove, by “failed to appellant which stated that ber evidence, of the tests set out either preponderance result, ...” As a the order Special Appeals the Court of jurisdiction that the circuit court declined to assume concluded comity to the Pakistani child granted this matter and appeals. It is from this order that appellant orders. LEGAL ANALYSIS

I contention that we should dis- appellee’s We first address allegedly included and appeal appellant miss because of her brief. appendix relied on extraneous materials to the fact that included Appellee specifically objects of Dr. appendix reports to her brief the and affidavits Ph.D., Rosenberg, Professor of Pediatrics Leon A. Associate University Psychology Hopkins and Medical at Johns School reflect his recommen- of Medicine. These materials had no bear- According dation. these documents appellee, on, nor even offered as evidence the Novem- ing they were result, charges As hearing. appellee ber 1994 remand to this prejudicial are irrelevant and materials these appeal. exercise its appellee this Court to

Consequently, urges (m) to Md.Rules 8-501 appeal pursuant to dismiss this power 8—602(a)(8)(1995) appendix the contents of the because & 8-501, which comply not with appellant’s brief do Md.Rule and brief contain appendices the record extract requires “reasonably necessary” and those of the record parts agree appellee we with appeal. “material” to the While are irrelevant to this Dr. and affidavits Rosenberg’s reports of appendix been included appeal and should brief, power to dismiss we decline exercise our appellant’s Instead, shall not consider those simply this we appeal. this materials, alternatively requests appellee extraneous Personnel, Md.App. Frosburg Dept. v. State Court. See (1977). 18, 32, 375 A.2d 582

II court argument first is that the circuit abused Appellant’s hearing in the by proceeding with the remand its discretion attorney. Appellee, court-appointed absence of the child’s hand, appellant preserve failed to the other contends 8-131(a), because appellant under Md.Rule appeal issue for hearing in the absence objected proceeding with never that, asserts even Additionally, appellee of the child’s counsel. court did not preserved, if matter the circuit properly issue that this agree appellee abuse its discretion. We with therefore, preserved may appeal, was not properly Nonetheless, for the benefit decline to review the issue. court, conducting circuit we observe that and the an' attorney was not abuse hearing remand without the child’s of discretion. in her brief that the circuit

Although appellant states counsel,” objection our review of “over the proceeded objection made such any record reveals that counsel never initially presence attorney’s the time matter of the child’s very beginning At the during hearing. arose the remand in hearing, greeting present the remand after those the court- case, and calling room the the circuit court the follow- stated ing:

And my understanding attorney], [the is that child’s who case, to in appointed represent the child is not date, to apparently, although agreed available. She she this is she not here and she is able to be My not contacted. understanding may is she on her from way be in South Carolina or North Carolina at this time. think,

I difficulty in of the we setting view have had in in, time, proceed, case we to ought though this even she I is not here. am to going So make that decision and proceed, though even counsel for the not present. child is by

Is there anything way opening statement from counsel?

After this it point, when would seem most to object, natural appellant’s neither counsel appellee’s objected nor counsel proceeding without the attorney. child’s hearing The then went forward. The again matter arose the remand after hearing concluded, had fully the circuit parties court and discussing reconvening were on another day closing argu- for At ments. point, response appellant’s counsel’s request present that the child’s attorney be to make a state- argument child, ment at closing behalf circuit court stated: position really point

[T]he child’s at this relevant. are point We not at a where the child’s position is to be taken into consideration. looking

We are here at the mandate of the Court of Special Appeals, which me requires to determine whether [appellant met of proof, burden has] [her] that the Pakistani court did not apply best interests of the child standard that, making decision, its that court applied rule of law or procedure contrary Maryland evidence or public so policy to undermine confidence the outcome of the trial. proven, Unless either of those are Court Circuit must jurisdiction decline to exercise and shall grant custody. making has no function in attorney

The why proceed today, I elected to even That’s determination. attorney] present.... is not though child’s [the hearing proceeding in the absence objecting Without counsel, appellee failed to alert the circuit court or should continued until such hearing be position of her present. counsel could be Under time as the child’s Md.Rule 8—131(a), non-jurisdietional ordinarily will not decide appears by it the record to been plainly “unless issue ...” primary trial court or decided raised all parties this rule is ensure fairness purpose law. State orderly and administration of promote case to (1994). 189, Bell, 178, This concern Md. 638 A.2d 107 v. 384 bring her by requiring counsel to for fairness is furthered on the matter at issue to the attention position client’s may pass upon the circuit court and court so that circuit proceedings. errors in the Id. any potential correct perhaps may by waived “Even errors of Constitutional dimension be trial, so timely objection may to a at and interpose failure rules.” procedural violations of sub-constitutional alleged (1982) State, 225, 231, 52 448 A.2d 363 Medley Md.App. v. omitted). State, (citations See, 695, e.g., Tichnell v. 287 Md. (1980) (defendant’s 713-14, prejudi argument 415 A.2d 830 to preserved was not because defendant failed cial removal County to and failed to seek a object to the removal Wicomico State, to 228 county); another Dresbach v. further removal (1962) curiam) (“If 451, 453, (per 299 the accused Md. 180 A.2d alleged of a remark complain impropriety to desired his trial he should have either moved to by made the court at out, juror it to a and declare a moved withdraw strike mistrial.”). circumstances, objection is not needed

In certain counsel’s Suggs For v. appeal. example, the issue for preserve State, 250, 252-56, (1991), during trial, in a defense of a witness criminal cross-examination criminal improper question prior asked an related counsel misconduct. trial objected, judge The and the prosecutor conference, judge strong- which the trial during called bench ly admonished counsel not to “ever do that in this again 254, courtroom.” Id. at 589 A.2d Counsel not agreed 551. so, cross-examination

do Id. and resumed. Counsel then asked proper question inquiring possible the witness a into 254, 256-57, bias on part the witness. Id. at 589 A.2d 551. prosecutor immediately objection entered a strong under the mistaken belief that this same question was the court, the previous “forbidden” The trial also question. Id. belief, under the same mistaken ordered sheriff to “take a ” counsel, hold of whereupon, jury’s defense in the presence, immediately position “[t]he sheriff moved behind [counsel] 254, 257, exercise control over him....” Id. A.2d removed, 551. After this episode, jury the trial if question again instructed counsel that he asked he jail. 254-56, would put be Id. at A.2d The jury 551. returned, and the trial continued defendant was ultimately convicted. point Id. at 589 A.2d 551. noAt object did defense counsel to the trial court’s action. Id. at 258, 589 A.2d 551. Court,

On appeal judge’s held that the trial “painted prejudicial comments such a portrait of the defense counsel as to deny right his to a trial.” [the defendant] fair Id. at Furthermore, 589 A.2d 551. we held that defense counsel did waive appellate object review failing to “because he reasonably feared that he personally would incur greater the of already wrath the trial outraged Id. at judge.” 258, 589 case, A.2d 551. In instant the contrast Suggs, to appellant’s counsel not precluded by was the of wrath an outraged from judge objecting to proceeding without the attorney. child’s

Rather, O., the instant is much case like O. v. John Jane 90 406, 435, Md.App. (1992), 601 149 A.2d that wherein we held a parent, challenging the circuit court’s child determina tion, could not raise for first appeal the time on the of absence the child’s attorney the In during taking testimony. of John O., the requested, child’s counsel and parties both that agreed, he be prior excused to taking the of Id. testimony.

addition, the child object indicated that he to did his

298 precise these facts are not Although absence. Id.

attorney’s hand, the in the case at we believe John O.’s ly same as First, appellant’s is counsel’s silence and fully applicable. rule time it would been natural to object her failure to at the so, naturally reasonably construed counsel’s do is attorney. of any objection to the absence the child’s waiver of 709, 719, Co. v. 76 Bragg, Fireman's Fund Ins. See (“When (1988) object of party option has the 548 A.2d him estopping is as a waiver regarded his failure to do so ing, Second, appeal.”). of that the obtaining point from review Court, that, brief to this states since attorney, child’s her not involve the substantive issue of hearing the remand did interest, not have the circuit best she could assisted child’s required in the factual determination under Malik. Thus, child, position her takes the through attorney, unnecessary light of discrete was presence counsel’s O., therefore, similar John hearing. nature of remand case, fully applies to the instant and its rule hereto. objéct to remaining failing after silent and

Accordingly, procedure, appellant’s counsel cannot now circuit court’s with complain hearing improperly proceeded that the remand of consequence appellant’s As a attorney. out the child’s in this neither the circuit remaining regard, counsel silent any way knowing appellant’s court nor had appellee hearing. with the remand disagreement going forward Indeed, counsel’s failure only way appellant’s to construe to the manner which the speak up agreement is as now, pat this issue would be hearing proceeded. To review ently appellee.2 to the circuit court and to unfair brief, citing Adoption/Guardianship No. A91 2. In a footnote in her In re 71A, 538, 557, (1994), County Washington Md. Clark, 199-200, Dept. Md. A.2d 1077 Social Servs. v. (1983), appellant incorrectly objection not re asserts that her cases, Appeals party's quired. held failure In both the Court of failure, in preserve propriety circuit court's the issue mandating place, appoint first counsel for the child under the statute person appointment is reviewable because where "the for whose such young too the issue protection the statute was enacted is have raised discretion, counsel, may, appellate [an court] [its] in the absence of

299 event, In if any appellant even had properly preserved the review, issue for our agree would "with that the appellee circuit court did not by proceeding abuse its discretion in the child’s attorney’s absence. There can be no that in a doubt contested child custody case the role of the child’s attorney is critical. Court-appointed counsel provides the circuit court with an opportunity to hear from an speak individual who will O., 435, the child. John at Md.App. A.2d 149 Levitt, 394, (quoting 404, Levitt v. 79 Md.App.

(1989)). Furthermore, the child’s attorney “provides indepen interest, dent analysis of the child’s best advocating either 436, parent’s position.” Id. at 556 A.2d 1162.

Nonetheless, observed, as the circuit court correctly parties’ interests child were not the focus remand hearing. Our mandate Malik very It specific. re quired the upon circuit court remand to decide two very specific factual issues as stated above. hearing The remand was not for the purpose determining the ultimate issue of interests, the child’s best but rather address Malik, limited threshold issues. 533-34, 536, at 638 A.2d 1184. agree

We with appellee that there was no need for experts to testify at the remand hearing concerning whether child’s interests would be best served awarding custody to Thus, or appellee. the presence of the child’s coun- sel was not addition, essential for that In purpose. as we noted, counsel for the child states in her brief that she “was aware that the minor child did not wish to have any contact Appellee Malik,” with but type of “[t]his information would not have assisted the trial court in making required Adoption, address the issue.” In re at 640 A.2d 1085. See also Clark, inapposite A.2d 1077. Both cases are to the instant case dealing because we are not with whether the circuit court should appointed counsel for the child requiring under a statute it to do case, Rather, so. In court-appointed our already place. counsel is event, applicable

John O. is the authority in any the instant case. even if applied, both cases light it would make no difference in of our discussion to follow. 300 Malik, Md.App. in v. 99 Malik

determinations as established short, 521, for which the A.2d the matters 638 1184.” not necessary be were child’s counsel would presence the early in the stage proceedings. this yet at issue record, the the it is clear that from our review of Also to ample evidence from which render circuit court had in Malik. The child’s in with the mandate decision accordance in addi meaningful anything could not offered attorney Indeed, already presented. counsel tion to what appellant’s to suggest, to or and we fail has failed demonstrate appellant see, by in any way prejudiced child was how the State, 194, See, 106 e.g., absence. Velez v. counsel’s (1995) (where 213-17, criminal defense counsel’s 664 A.2d 387 is not to defendant’s prejudicial absence from proceeding absence). to rights, proceed it is harmless error counsel’s 85(a)(2) § (prejudice that coun See also 66 C.J.S.New Trial to is an element to be considered party sel’s absence causes trial). Indeed, it is generally a new not granting before the a trial on ground of discretion refuse continue abuse represented the is party that a is absent where party’s counsel Rossignol, Martin v. present. other counsel adequately (1961). 363, Along 366, 149 See also Cruis Md. A.2d (1969). 143, Boats, A.2d 184 Inc. v. 255 Md. Langley, is Thus, recognize attorney’s that the child’s function while we child, of the whatever despite the interests represent be, attorney the child’s litigating parents might wishes of position has it clear that child’s the instant case made As a appellant’s position. this the same as dispute result, presentation of the of her thoroughness of the because attorney hearing, at the remand position by appellant’s chent’s child.3 any prejudice we are unable to discern aside, judicial would a monumental waste of 3. As an we note that it be resources, attorney's position, light for Court child's ground that child’s court on the remand case circuit attorney hearing. we were to remand was absent from the remand If case, appellant’s re-prosecute matter with the counsel would adding anything attorney present, of value to child's but clear, because, proceedings could not assist has made she counsel Even if the properly matter were preserved appeal, therefore, proceeding the absence of counsel was not an abuse of discretion. Langley, 255 Md. at 257 A.2d 184 (continuance because of counsel’s absence is discretionary). See, e.g., Markey Wolf, 137, 177-78, v. 92 Md.App. 607 A.2d 82 (1992) (denial of continuance not reversed unless abuse discretion) (citing same); a wealth of stating cases Reaser v. Reaser, 643, 648, (1985) (denial 62 Md.App. continuance not reversed on appeal absent abuse of discre- tion). sum,

In holding our on this issue is best captured by the language of the Court of Appeals sixty years ago:

We confess our inability to understand what manner plaintiff’s injured case incident, this yet, if felt otherwise, we powerless him, would be help to since he then made no objection to continuing the trial. party For a to remain silent under such circumstances until after losing his case before a and jury then for objection the first time make to such procedure and be sustained therein would be alike courts, unfair to litigants, and public.

Lynch v. Mayor City Baltimore, & Council 169 Md. (1936). 182 A. 582

Ill Turning to the heart of this appeal, appellant argues that the circuit court erred in determining that appellant failed to prove that Pakistani law was not in substantial conformity Maryland with law. regard, this appellant’s argument is first, two-pronged: appellant maintains that the Pakistani court did not apply the “best interest of the child” standard to hand, the case at although the standard Pakistan; exists in second, if even the Pakistani court apply did the best interest of standard, the child the rules of law procedure that the Pakistani courts followed were contrary Maryland’s to judge making trial the relevant determination under Malik. The result, therefore, would be to allow a second bite at the apple. feel arguments, we addressing Before these

public policy. observations. to make certain critical constrained is pastime agree of our national that what sports Devotees keep his or her on eye most for a batter is important Lest in our review herein. guided ball. too must we be So assigned appeal about our task this any there be confusion below, in mind from limited we must bear hearing remand legal This case not a review of what this case is not about. is circuit Neither is this case about determinations court. judge a Maryland trial or trial judge whether a Pakistani decision, both are “right” judges entitled reached words, they findings; factual in other deference as to their they Significantly, them see them.” right have the “call as acting task undertaking not this Court is about case its substituting circuit court or as a fact finder in place And, court. this case is judgment for that of the Pakistani culture, legal or religion, system about Pakistani whether all of the same to us whether we share personally offensive customs, Pakistani values, but rather whether the mores and law, evidence, or contra- procedure courts a rule of so applied Maryland undermine the confi- dictory public policy dence in trial. the. of is our the resolution this case about specifically,

More and very as from the narrow limited and focused task derived the circuit court on remand from Malik. specific function of Malik, 536, 638 A.2d 1184: Md.App. As we in explained remand, must first determine wheth-' On the circuit court law' er Pakistani court that is substantial applied the re- conformity Maryland with law. That determination (1974, of evidence. Md.Code quires presentation the See Pro- § 10-505 the Courts and Judicial Repl.Vol.), court’s order ceedings custody Article. Pakistani correct, presumed presumption to be and shifts preponderance the burden [appellant] proving (1) “best that the Pakistani court did not the apply evidence (2) standard, its making or interest of child” decision, evi- applied the Pakistani court a rule law or contrary public policy so procedure Maryland dence or trial. If to undermine confidence the outcome (1) (2) is court must conclude proven, either circuit lacking conformity that the law of Pakistan is so with the to the Maryland comity granted law of cannot be however, proven, order. Unless either is Pakistani jurisdiction the Circuit Court shall decline to exercise its Pakistani decree. grant comity and shall mandate, crystal limited it is clear Having very issued that straightfor- task of the circuit court on remand was Thus, to hold simple. obliged ward and the circuit was (1) evidentiary hearing an to determine whether Pakistani the “best interest of the child” standard or its applied courts (2) and equivalent, procedural whether the substantive rights litigants before the Pakistani courts were applied such that confidence the outcome there was undermined. Accordingly, faithfully to our mandate and adhering following simple Malik’s road the circuit map, court conducted evidentiary hearing experts wherein two testified—Dr. Malik Dogar and Justice for Based on their appellee. testimony, testimony the circuit court concluded that presented by Dogar supported finding Justice that appellant failed to meet her burden of on the proof two matters that she required prove under Malik. having

The circuit court made that determination—a judgment factual determination—we cannot now reverse the of the circuit court unless we find the circuit court’s determi 8—131(c) (1995) “clearly nation to be erroneous.” See Md.Rule (“[w]hen an jury, action has been tried without a the appellate court will review the case on both the law and the evidence. It judgment will set aside the of the trial court on the erroneous, evidence unless will clearly give regard due of the opportunity judge credibility trial court to witnesses.”). Inc., Int’l, Wyk, See also Van Inc. v. Fruitrade (1994) (the 662, 668-69, “clearly applies findings erroneous” standard of fact under Md.Rule 8-131(c)). Accordingly, produced we must view the evidence during the remand most to the hearing light favorable

304 Walker, 100 Rockville v. Mayor appellee. prevailing party, (1994) Maryland 240, 256, (quoting A.2d 751 640 Md.App. (1978)). Metzner, 31, 41, A.2d 564 Metals, Md. Inc. v. circuit support if there is evidence light, in this Viewed In determination, appeal. it on Id. will not disturb we court’s not be deemed words, findings will the circuit court’s other evi material by competent if supported erroneous clearly State, 485, 491-92, A.2d 404 Nixon v. dence. (1993). mind, shall now determine principles these

With issues appro- our attention to has directed whether and, they have appropriate, if whether appeal for this priate any merit.

A that, general principle, as a overwhelming The evidence making child test in interest of the follows the best Pakistan experts Both testified custody decisions. child child of 1890 applies Act Guardians & Wards appoint Act authorizes a court to 7 of the Section disputes. it for is satisfied that where “the Court guardian minor____” § 7 and Wards Act Guardians the welfare of a Act, in states: (1992). part, pertinent 17 of the Section minor, (1) of the guardian declaring In or appointing section, be shall, to the subject provisions the Court law to which the what, consistently with the guided by to be for the circumstances subject, appears minor is minor. welfare of the

(2) of the for the welfare considering what will be age, sex and minor, regard to the the Court shall minor, of the capacity the character and religion minor, kin his nearness of proposed guardian existing wishes, any any, parent, if of a deceased minor with the guardian of the proposed relations previous property. or his

(3) enough intelligent If the minor is old to form an consider that preference, may preference. the Court (1992). § Guardians Act Wards above, As noted made it clear experts during 17 of the Act hearing encompasses many remand Section courts in types determining different of factors considered expert testimony the “welfare of the minor.” The was clear that, case, on the of a Pakistani depending specifics given courts examine a number of different facts to determine the welfare of the child. law, Maryland family

In their seminal handbook on Gilbert, Fader Judge citing and Master exhaustive collec law, Maryland tion of case outlined the various factors that may courts consider in best determining the interest child, including: parents, fitness character and reputation health, the parties, preference, age, the child’s and sex of child, adultery parents, and material opportunities life of the F. II affecting future child. & Fader, John Maryland Family (1990 § J. 7.3 & Gilbert, Law, Richard Best, Supp.1993). 655-56, See also Best v. 93 Md.App. (1992). addition, determining best interest of the child involves a ambiguous multitude often Best, intangible factors. 613 A.2d therefore, Necessarily, 1043. analysis conducted on a basis, case-specific child’s best interest “varies from each individual case.” Id. In view of expert testimony language itself, and the of the Guardians and Ward Act there supporting substantial evidence the circuit court’s deter mination that Pakistan follows the best interest of the child standard in child custody disputes. however, that,

Appellant, argues under this Court’s mandate Malik, it is enough merely recognizes that Pakistani law that the best interest of the child standard controls matters of Rather, custody. appellant maintains that Malik re- the circuit court quired to determine whether the Pakistani standard, actually courts this case applied and that the circuit court in finding “erred that the Pakistani court applied the child decisions

the best interest of standard” because the solely courts “based on the mother’s Pakistani were failure to in the Pakistani appear proceedings.” part that the first mandate agree appellant

We with of our deny the circuit court to required comity Malik if could the Pakistani prove Pakistani order court did not the best interest standard to this case. apply Malik, 533-34, A.2d In 1184. other words, correct it was not under our enough is that merely mandate for the circuit court to find that the best in in interest of child standard is the law child the Pakistan custody persuaded, however, are that We substan- disputes. tial evidence before the circuit court indicated that the Paki- applied stani in fact the best interest of the child courts standard. shall

Preliminarily, appellant’s argument address appellee’s the Pakistani courts’ sole reliance on evidence be- of appellant’s proceedings cause absence from the Pakistani actually rendered it for the Pakistani courts impossible to have applied reading interest the child standard. A fair best of the courts in considered record reveals Pakistan evidence, appellee’s denial of including appellee’s appellant’s to to allegations, concomitantly weight refused accord that, testified a matter allegations. Appellee’s expert those as practice, only way the Pakistani court would have if in allegations appeared considered she had appellant’s not, them. she did person according substantiate Since not appellee’s the Pakistani court did consider those expert, allegations.

ThiSj however, not does mean that the first of our prong in mandate Malik was not satisfied. That the Pakistani court

may have considered evidence and refused to appellee’s in appellant’s credence to the best give allegations making interest of deter- determination does render that mination to the purposes granting comity defective our Pakistani order under mandate Malik. rely only that the Pakistani court could elementary

It seems during proceedings presented on evidence that making custody before a determina- Maryland, Pakistan. UCCJA, provide the court must Maryland tion under the any person to be heard to opportunity reasonable notice and of a child. Md.Code custody a claiming right Ann., Fam.Law (1991). If whose custody proceeding § party 9-205 state, or court is outside the “with presence is desired of the child,” may court order that the notice without the and declare appear personally direct that proceeding party result a decision adverse to appear may “that a failure to 9-211(b). § decree Simply put, custody Id. at party.” Maryland of a or who have been served this State parties

binds all Rules of Proce- Maryland accordance with the notified court, dure, jurisdiction have submitted to the who to be heard. As to given opportunity and who have been as to all these decree is conclusive parties, deter- issues of law and fact decided and mination made unless and until that determination is modi- law, including provisions fied to of this subtitle. pursuant added). Thus, § 9-212 in a court (emphasis Maryland Id. at in will with a child determination the absence proceed Moreover, appellee appellant’s of one of the denied parents. allegations during proceeding. the Pakistani find, therefore, do not that the best interest of the child

We test not in Pakistan because of failure applied appellant’s to on a testified that a natural put Dogar case. Justice drawn from one’s failure to evidence. presumption present is unique Hayes This is not to the courts of Pakistan. v. (1984) (citations State, 489, 495, omitted), we observed: Appeals Maryland consistently applied Court has party

this rule civil cases and held that where a fails to take the stand to as to testify peculiarly the facts within his knowledge, testimony by or fails to evidence produce (e.g., witnesses) certain that may the fact finder infer the testimo- ny produced party. would have been unfavorable to that it where cases, applies the unfavorable inference

In civil a party circumstances for natural under the would be most or evidence. speak, present to and had Maryland,

Indeed, originated this case had appear testify failed to the one who appellee been received having after through persons, other present evidence notice, proceed be obliged our circuit court would proper mean, however, as it. This would not the evidence before would not have the circuit court suggests, appellant contrary, Quite interest test. the best applied using applied circuit court the test would mean that the simply it. the evidence before proceeded virtually Pakistani court regard,

In this proceed- a court would have Maryland same manner in which circumstances, failed to Under these parent appear. ed had a therefore, doing Pakistani court for shall not condemn the circuit would have Maryland substantially which done. appel the uncontroverted fact that -viewis bolstered

Our side in present her opportunity lant had notice and Pakistan, doing so. The evidence against but decided had notice uncontradicted Pakistan; right representation she had proceedings evidence, call counsel; present had the right and she partici in fact witnesses, and cross-examine witnesses. She through counsel proceedings in the Pakistani pated failed to attorney-in-fact. Appellant her father as through that she did not have to the circuit court demonstrate for the to be Pakistan meaningful opportunity present of the record demon A reasonable examination hearing. the circuit court could evidence from which strates sufficient togo opportunity concluded that had the have so, that, Pakistan, and had she done so elected not to do witness, the Pakistani through any evidence produced had she have she could fully any have considered evidence court would this, cry foul for In all of she cannot now produced. light of on evidence.4 appellee’s courts’ exclusive reliance the Pakistani III.B.v., we Furthermore, in Part expressed for the reasons effect of argument that the persuaded by appellant’s are not returning her from adultery prevented her admission to Pakistan. sum, therefore, Pakistani courts relied

In the fact that the evidence, of without consideration exclusively appellee’s on itself, not, did of support allegations, in appellant’s evidence have the Pakistani courts to impossible make it legally interest of the child test. applied the best

B competent now address whether substantial evidence We the circuit could have determined existed from which court applied that the best interest of the child standard was fact Preliminarily, beyond it cavil that a Pakistan. we believe best interest of a Pakistani court could determine the culture, customs, by analysis child utilizing Pakistani of which the religion, community country and mores of the i.e., Paki- parents part, child and—in this case—her were Furthermore, only apply stan. the Pakistani court could point best interest standard as of the time when the futuro, not having being presented, evidence is the Court to a way predicting spirited away no that the child would be words, trial culture.5 other how could a Pakistani foreign that, holding 4. We note otherwise would lead to undesirable behavior having physical custody part party of the child. the absent party effectively proceedings The absent could “hide out” until Thereafter, party’s jurisdiction the other have been concluded. party jurisdiction’s successfully run to absent could his court and jurisdiction's comity party’s denied to the order of the other court on ground applied that the best interest of the test was not there party's because absent evidence was not considered. To frustrate country’s adjudicatory process another or state’s in this manner is contrary orderly disposition litigation avoidance multi- plicity of lawsuits. imperative apply 5. The that the the best interest Pakistani stan- dard as of the in Pakistan and the time father sued for child correction, presented supra, case was in that court unaffected our 310 it was pre-supposing—as any other standard apply

court child would continue be the minor to—that constrained religion? culture and under the Islamic in Pakistan raised of two Pakistani Thus, of a Pakistani child the facts faced with all parents culture of her raised who had been parents utilize the properly court life, only did the Pakistani of her incul- family had been by customs which mores and available to teachings cated, only principles it but used to determine required circuit court was it at time. The as applied child standard was interest of the whether the best utilizing it the customs applied have a Pakistani court would society. regard, to that indigenous and mores prop- court, testimony Dogar, of Justice relying on the circuit court would on how a Pakistani findings its of fact erly based Hence, of the child standard. the best interest applied culture, being well in the Pakistani bearing in mind that thought be proper development and the child’s the child expect one would teachings, adherence to Islamic by facilitated the removal weigh heavily court would that a Pakistani certainly It is not as detrimental. child from that influence priorities to reorder the appeal attempt task on this our undeniably legitimate analysis in its the Pakistani court interest of the child is on whether the best bearing factors appellee. by granting served orders, court of the Pakistani plain reading Based on a erroneous clearly was not judge hold that the trial we interest of applied courts the best that the Pakistani finding face, the Pakistani case. On their the child standard to this 1, granting order August 1993 orders—especially indicate that appellee—unambiguously permanent Before applied. child standard was fact the welfare of the order, widely- guided we are each Pakistani analyzing in the must be construed judgments recognized principle country than after— fled the before—rather noting that the mother was not custody. Pakistani court appellee petition for filed his it, to, to a Pakistani apply the best interest standard obliged nor could using values. American documents, accordingly, written same manner as other do not look unambiguous, is clear and meaning where its See, order, there is no room for construction. beyond Reavis, 77, 460, 462 N.C.App. 345 S.E.2d e.g., Reavis v. 491, (1986); 496 A.2d Lashgari, v. 197 Conn. Lashgari (R.I. Blanchard, (1985); 484 A.2d Blanchard v. 1984). it recognized principle court when The circuit appel for itself.” Because judgment speaks stated that “the order, several Paki custody lant Pakistani appealed appellee’s orders review thereof.6 upon stani courts issued 23, order originally We first examine the October The Court of Vth granting temporary custody appellee. In this order. the Judge/ASJ Senior at Karachi East issued order, that first of the the court stated paragraphs several had for and set forth the facts on appellee applied custody presented parties’ both sides of the case. The court then both arguments why for the welfare of the child demands Next, particular party. to that the court custody be awarded prior dealing examined Pakistani case law with the welfare of the child has the child from the parent away where one taken binding other noted that was parent. The also there that, for the precedent proposition passing an “order minor, temporary custody of the the welfare of the minor is to paramount be considered as a consideration.” From these cases, the court concluded that lost her appellant right “Hazanit”7 over the minor the child from the removing father. hearing,

6. At the remand orders were into evidence. these introduced they Our review of these orders indicates that were from the Pakistani judges' rulings grammatical oral from the bench. The orders contain usage and word errors. experts explained, religious personal right 7. As the "Hazanit” is a on, depending among things, age of one's child other explanation appellant’s We of this and sex the child. set forth aside, discrepancy doctrine below. As an there seems to be some regarding proper spelling of the term. The Pakistani orders state "Hizanat,” parties but the state "Hazanit.” In the interest of conve- nience, employ parties’ spelling. we shall perspective from the heavily, which The court focused understandable, appellant fact that on the is Pakistani court “in court stated that country.8 out of the took the child from Karachi minor has been removed case the present proper being given the father is even U.S.A. in the nothing there is to see her and of the minor address studying where the minor as to pleadings [mother] that, law, stated case the court of the Pakistani light ...” U.S.A., deprived has appellant to the the child by removing This, her father.” to meet opportunity of “an the child court, to the mental health injurious according result, held the court of the child. As being well emotional tempo- and awarded her to Hazanit right lost rary custody appellee. suspended order had the successfully

Appellant Upon her of that order. appeal during pendency Karachi East Judge III Addl. District appeal, Court affirming the October judgment April issued a sides, judg- both reciting the facts on 1991 order. After the case law correctly applied court that the ment concluded Hazanit where she right her that the mother loses holding result, the access. As a from the father’s the child removes "withthe October no reason to interfere court found reviewing 23,1991 order. Judge/ASJ Civil the Court of Vth Senior appeal,

After this 1, 1993, August disposing judgment dated & R.C. issued Act for the 25 of the under section appellee’s application perma- custody granting appellee’s of the child to return that, where a child 25 states custody appellee. Section nent may the court guardian, of her from the is removed into the child be delivered order that “it will be for the welfare if court finds that guardian, the ward.” may considered not have that the court Pakistan

8. We are mindful departure Pakistan. As preceding appellant’s from circumstances however, above, not do so because the court could explained her claims. appellant appeared never to substantiate dispute, facts of both sides of the reciting After “[wjith whom the wel- specifically court set out determine In doing, minor so the court set forth [l]ies.” fare of the is Appellee appellant testified that testimony appellee. U.S., in the and that his a “sin life” with her lover living In being by appellant. cared for daughter properly is addition, his child lived in Paki- appellee testified that when Joseph to attend the St. School where she paid stan he her education, now but that the child is not received Islamic Moreover, appellee an Islamic education the U.S. receiving fear, appellant controlling through that is the child testified in- character. also appellant Appellee and that lacks moral appellant’s comply formed the court of failure to with a court further stated that the man Appellee Pakistani order. appellant living stranger with whom was a the child. sum, In appellee’s testimony before the Pakistani court was that the welfare of the child will suffer the hands of appellant and her lover. chal- appellant

The Pakistani then noted that did not lenge appellee’s testimony, or rebut she was full “though given addition, chance for same In purpose.” the court observed that counsel appellant’s argue “also failed to the matter.” record, i.e., Based on this uncontradicted evidence on the appellee’s testimony, the Pakistani court reasoned that custo- dy should be appellee awarded the interest of “the welfare and well being” doing, the child. so the court upon relied and considered appellee several factors to which testified, that e.g., appellant forcibly removed the child from access, appellee’s appellant that lived with another man adultery, had paramour, with her the child was in a living society, appellee non-Islamic is a businessman in an living society, appellee Islamic and that good moral character. it pellucid unambiguously

We believe is that these orders that indicate the Pakistani courts did in fact apply welfare Moreover, of the child in awarding custody appellee. test clearly these orders contravene the that minority’s assertion the Pakistani only pur- courts considered appellant a life of sin the United States living

portedly to the United child from Pakistan kidnapped the factors. In- relevant best interest States, and other ignored order, final the Pakistani deed, August its testimony. We appellee’s its conclusion on plainly court based court’s reliance on with the Pakistani nothing improper see likewise, sitting judge, A trial testimony. Maryland appellee’s credibility weigh judge jury without a is' entitled 8-131(c) (1995). of the witnesses. See Md.Rule testimony Pakistani court failed Thus, that the minority’s suggestion conclusion and draw a reasoned the evidence to consider stated, not con- As we we are merit. therefrom is without test applied court the Pakistani cerned with whether reviewing are not the merits because we properly correctly, however, are, concerned with that decision. We sure, fact, the test was To be whether, applied. a matter of judge, we in the shoes of the Pakistani standing we were to the various weight or lesser greater might given issue, a different conclusion. thereby reaching factors a Pakistani Moreover, weight, as certainly give great would cultural away from tearing a child judge, impact his/her child’s best interest. would have on the moorings and religious how however, it is not our function to consider appeal, On this standard, interest of the child the best applied we would have reviewing appellate Pakistani is it that of a nor court’s determination. Pakistani lower merits of the Pakistani court reading of the exclusively plain on the Based themselves, compe- that there was substantial we hold orders could have conclud- the circuit court tent evidence from which interest the best standard. applied that the Pakistani courts ed terms of unambiguous and clear satisfied that We are if we for themselves. Even speak do indeed these orders orders, it plain reading go beyond were inclined evidence that there is other sufficient readily apparent the circuit court’s determination. support Dogar, expert, Justice appellee’s counsel asked Appellee’s applied the Pakistani court whether opinion regarding for his replied he Dogar child test. Justice the welfare of the apply that the Pakistani court did not had no reason to believe in the orders. While the test since that is what was written reasoning, the Pakistani courts’ might agree one not with was to the extent Dogar applied testified that the test Justice right the circuit court had the presented of the evidence testimony. to credit that themselves, event, which light

In in of the orders any factors, light of several and in indicate the consideration testimony, we conclude that Dogar’s Justice extensive competent contains evidence from which the record substantial in circuit court could conclude that the Pakistani courts fact affirm, the best interest of the child standard. We applied therefore, grant comity on this basis.

C Next, that, even if the Pakistani court did appellant argues standard, in fact apply best interest the circuit in failing part court erred to conclude under the second of our mandate in Malik that the child law and procedure contrary Maryland’s that the Pakistani courts followed was public policy. disagree. Appellant We sets forth several in arguments support of her contention that Pakistani law is contrary Maryland law. shall each argument We address in turn.

i reject We appellant’s argument Pakistani applied “contrary Maryland’s public court a rule of law so trial,” as to undermine in policy confidence the outcome of the when it based allegedly its child order evi appellee presented. Initially, dence that we observe that we fire, upon pass judgment by are called here to on a trial ordeal, by system trial or a superstition, rooted witch fact, craft. custody system Pakistani child is rooted the Guardian and Wards Act 1890—an enactment based on A, part British common law. As we noted in the great weight (1) of evidence shows: the Pakistani court in a proceeded manner quite Maryland similar the manner which a (2) appear; had a failed to proceeded parent

would her side of opportunity present and an had notice appellant (3) by Pakistan; represented the case result, circuit As a her father Pakistan. counsel and child basing to conclude that the by failing err court did not the Pakista- on evidence that was before only decision custody Malik, Maryland public policy.” to “repugnant ni court was 534, 638 A.2d 1184. ii is law as Pakistan applied claims that the Appellant also the Pakistani Maryland policy because repugnant public to Malik, we stated the of Hazanit. right order was based on following: us, we cannot determine whether the record before On can, Maryland law. We conformity law lacks with Pakistani however, of the Pakistani resolve the narrow issue whether is a comity paternal should be denied because there order in Pakistani law. If the difference between preference and Pakistan is that Pakistani custody Maryland laws of way Maryland courts apply paternal preference courts a the Pakistani order is preference, the maternal applied once A state whose comity. custody decree of sister entitled parent contains a for one over custody preference law course, comity, provided, another would be entitled the best interest of the custody applies state’s law sister therefore, not, Maryland A court should child standard.... custody merely order because refuse to enforce a Pakistani country’s is found in that law. paternal preference Id. at 638 A.2d 1184. noted, embodies the doctrine of Hazanit previously

As we paternal preference, Islamic rules of maternal and complex de- Appellant and sex of the child. depending age as follows: scribes the doctrine law, governs Doctrine of Hazanit

Under the Islamic Hazanit, the mother custody. Under the Doctrine custody up age of her male child to the is entitled (7) age female child to the up puberty. seven and of her However, subject Hazanit is right the mother’s is child’s natural guardian. control of the father who Moreover, custody if the father is unfit for once the child relatives, age, paternal reaches the the child’s male requisite Further, mother, the moth- given custody. and not the are can reaches the requisite er lose before the child (wicked age untrustworthy). if she is an or “apostate” mother can also lose before the child reaches the age promote religious if she can not requisite [sic] secular interests of the child. case, that in the Pakistani court ruled

Appellant states that she lost Hazanit because she removed the child right exercise to control appellee U.S. where was unable to his as the child’s natural further notes that guardian. Appellant she was considered in an adulterous “apostate” living household.

Certainly, preference the doctrine Hazanit not a rule “way Pakistan same courts once applied Maryland however, This, applied preference.” the maternal does not mean that it is therefore “repugnant Maryland public policy.” Our review of the record indicates that there was competent upon substantial evidence which the circuit court could base its conclusion that “the law there in Pakistan is not repugnant so of that Maryland law we should fail evidence, grant comity the case.” Given this we are also satisfied that the circuit court was correct in this legally regard.

The circuit testimony court had before it the expert that, Act, Dogar Justice under the Hazanit is but one of the factors to be considered in the welfare of child test. He stressed that a blindly apply Pakistani court does not in making doctrine Hazanit determinations. According Dogar, to Justice “If personal expressed [as law in the doctrine of only thing was to be the on the Hazanit] decided, basis on which [the welfare of the was there child] no ...” would been Guardians and Act Wards Given opinion credibility circuit court’s of this from expert, reasonably circuit court could we hold that the testimony, this addition, factor. In merely that Hazanit was one have found not make Pakistani law of this factor does consideration policy. Maryland public repugnant in many respects Hazanit is different recognize We in this once followed preference traditional maternal from the however, Hazanit is nonetheless recognize, State. We they in that both preference traditional maternal similar to the (which are very assumptions old notions are based false outdated, discriminatory, outright considered widely concerning parent which is best society) modern today’s parent child and with which that child' young to care for a able a factor to regard, standing belongs.9 best Viewed examination, in the best interest of the child weighed be objectionable any type than other Hazanit is no more Malik, the courts of this State As we noted preference. of those states to enforce child awards will refuse Malik, maternal as a factor. recognizing preference still A.2d 1184. in degree more doctrinaire only that Hazanit is Given and because the circuit court the maternal preference from factor, hold that found it to be we reasonably could have concluding principles did not err in that the the circuit court repugnant were not applied Pakistani law which were fact, the Pakistani court arrived at Maryland law. in Maryland now preference recognized same rule of maternal right had forfeited her virtue of its decision Hazanit, in the i.e., longer applied no preference Thus, of Hazanit right had the been custody determination. factor, to note that are obliged as a we would be considered 1, McAndrew, (1978), Md.App. A.2d v. 39 382 1081 9. In McAndrew prefer- Maryland the maternal wherein we concluded that abolished statute, reasoning underlying presented the the maternal ence as a "universal preference. We noted that it was once described 6, commonality verity” recognized "by the of man.” Id. at and was views, concluded, despite parent is no "[a] We these A.2d 1081. particular longer to lack a attribute presumed to be clothed with or merely parent male or female.” Id. at 382 A.2d 1081. because that simply unprepared to hold that longstanding this doctrine of one of the world’s oldest and largest religions practiced by hundreds of millions of people around the world and in this country, applied as one factor the best interest of the test, is repugnant Maryland public policy. Since Pakistani court decided the right forfeited, to Hazanit was it was not factored and thus the effect of the preference was the same as that now recognized Maryland under law.

iii Next, appellant asserts that the Pakistani or ders were founded on principles of law repugnant Maryland public policy because the orders were allegedly based on the Pakistani presumption that an adulterous parent is unfit for custody. disagree. record, We including the Pakistani orders and the testimony of the experts, contains substantial evidence that adultery only one factor considered.

There is nothing “repugnant,” or even foreign, a court considering adultery as a factor in determining the best Davis, interest of the child. In Davis v. 119, 127, 280 Md. (1977),

A.2d 231 the Court of Appeals stated that it is proper in certain cases to Swain, consider adultery. Swain v. 622, 629, denied, 406 A.2d cert. 286 Md. 754

(1979),we stated the following:

[Tjhere are now no presumptions whatsoever with respect to the fitness of a parent who committed, has or is commit- ting, Rather, adultery. adultery is relevant insofar as it actually affects a child’s welfare. We will not presume a effect, harmful and the mere fact of adultery cannot “tip balance” against a parent the fitness determination. Thus, a chancellor weigh, should adultery itself, not the but only any actual harmful effect that is supported by evidence.

While argues terms unfitness,” of “presumption the testimony at the remand hearing was sufficient to support a conclusion that adultery was only a factor. Accordingly, circuit court did not err by failing to conclude that aspect

320 to repugnant of the child test was

of the Pakistani welfare policy. Maryland public

iv Malik, 536-37, A.2d appel- at Quoting heeding the court not argues that circuit “erred lant further Appeals to avoid Special placing warning the the Court ... the removal of ‘... much on emphasis too preceded on the circumstances that too ... emphasis little aspect this of Ma- misunderstands Appellant removal only this would be regard of caution in lik. Our statement this dispute “if the court must resolve applicable circuit law____” Id. 1184. A.2d Maryland accordance with never the resolution of circuit court reached Since the law, Maryland the circuit in accordance with dispute err. court did not appellant argues

To Pakistani the extent weight appellant’s too much on removal of courts placed child, already state that determined simply we be for on proceeding cannot faulted based Pakistani courts it. A could Maryland that was before court only the evidence if the removal the child preceding consider events are presented during proceed- of those evidence events stated, to go did not to Pakistan substanti- ings. As proceedings at the representatives ate her claims and her her support allegations; no evidence presented Pakistan therefore, appel- to believe simply the Pakistani courts chose testimony appellant’s lee’s and evidence over unsubstantiated con- by failing not err allegations. circuit did for the Pakistani Maryland clude that it was law repugnant proceed courts to in this fashion.

v custo asserts that the Pakistani Additionally, appellant repugnant were founded on of law dy principles orders Maryland allegedly the Pakistani courts public policy because considering without “penalized appearing mother ability to return adultery of her her affect admission to Pakistan.” regard, appellant points out that if law, convicted under Pakistani criminal penalty her could be public whipping or death stoning.

Although Dr. Malik opined that would be arrested for adultery if she returned to Pakistan for the custody proceedings, he also punishment conceded that adultery10 for was extremely unlikely and proving the crime11 was extremely difficult. Given this testimony, the circuit court was not clearly erroneous in not considering effect of whether appellant’s admission to adultery was “repugnant” to Maryland public policy in its failure to find that the Pakistani courts punished her for appearing. not

vi Appellant also asserts that the circuit court erred jurisdiction assuming under the argument UCCJA. This evi- dences total of our misunderstanding mandate in Malik. As we have stated throughout Malik, opinion, we remand- ed this case to the circuit court for very purpose. discrete court, The circuit following our mandate which required appel- lant to bear the proof, burden found that she prove failed to (1) both: the Pakistani court did not apply best (2) interest of test; the child the Pakistani law applied was contrary Maryland public policy. the event that neither one of these two determinations proved, our Q: women, many "How years, in the last 50 have been stoned under 10. the Hudood Laws adultery?” [criminal law] for

Dr. Malik: "No one.” Q: "No one?” A: "No one.” Q: single "Not a one?”

A: "No.” Q: "And proof isn’t that because the under practically Hudood is 11. impossible?” Dr. impossible, Malik: "It's not very but it is difficult.” Q: "Well, requires eyewitnesses— it four right.” A: “That’s Q: penetration, “—of the intercourse; of the actual act of sexual does it not?” "Very A: true.” circuit court crystal were clear: “the

remand instructions A.2d Id. at jurisdiction.” decline to exercise should 1184. stated, words, proven, as we “Unless either

In other its however, juris- to exercise Court shall decline Circuit de- comity to the Pakistani grant and shall diction having Neither been Id. at 638 A.2d 1184. cree.” instructed—declined just the circuit court did proven, We find no merit jurisdiction comity. granted assume jurisdictional Our Malik appellant’s argument. opinion itself, adequately addressed speaks already and it has regard. in this appellant’s argument

vii sundry are minority opinion Peppered throughout proceeding introduced at the initial to matters references County, unsupported the Circuit Court for Baltimore before Dr. by appellee, report of and the of wrongdoing allegations they beyond are Rosenberg, only objectionable not because Malik, part are a of the they of but because not pale makes minority on this The nevertheless appeal. record utterly ignores to extraneous materials reference these of matters of this case. Consideration procedural posture a determination of the to the merits of a cause before go that jurisdiction—when question—runs there is such a question of Zouck, v. procedure. rules of See Zouck accepted counter to State, (1954), 285, 302, and Stewart v. 104 A.2d 573 Md. (1974), 258, aff'd, 275 Md. (1975). A.2d 290 words, of decision in Malik was

In effect our legal other from all of events suspend to and remove consideration County— transpired in the Circuit Court for Baltimore to evidentiary matters—prior including all proceedings though it is as legal contemplation, our decision Malik. to review until subject never and are not our they happened supporting grant of findings such time as there were factual non, of comity, question vel and hence resolution Thus, with our jurisdiction. consistent exercise the court’s dismiss, on ruling appellee’s motion to none of the matters referred to or materials introduced at initial proceeding before the circuit court are us. properly before

Likewise, appellant’s when counsel asked that the child’s be lawyer present allowed to be to make a statement on behalf child, pointed the minor it was out that counsel child testimony had heard the of the two experts and would not in a position be comment on what the appropriate standards jurisdiction. be regard should with court,

The trial response whether a comment should be presented position, stated, on the child’s “we are not at a point the child’s position where is to be taken into consideration.” specifically then noted it was to be guided by the mandate of the Court Special Appeals, requires “which you me determine whether have met your proof, burden that the did Pakistani court not apply the best interests of the that, in making decision, standard its that court applied a rule law or or procedure contrary evidence so Maryland public as to policy undermine confidence in the outcome of the trial. Unless either of those is proven, the circuit court must decline to jurisdiction exercise and shall grant custody.” The court went to observe that “attorney for the child has no function in making that determi- nation.”

Thus, it is court, after the pursuant circuit to our Malik, mandate in would, fact, determined that it exercise jurisdiction its empowered it would be to consider the merits, including Dr. Rosenberg’s report and other extraneous matters referred to the by otherwise, dissent. Stated a factual determination of whether the proceeding in Pakistan comported Maryland with law was antecedent to any consider- ation of the present position child’s because the circuit court was without power to address the merits until it determined it jurisdiction. should exercise its Appellant’s counsel report could have offered the Rosenberg any of Dr. or other evidence on the merits had trial the court determined that comity however, not granted; should be grant- since the court jurisdiction, thereby to exercise the comity

ed declined point the child’s present never to where proceedings ripened was relevant. position herein, throughout indicated the trial court

As we have mandate Malik as to to it endeavored made reference our court, we in- Significantly, our mandate. the as carry out it, the upon appellant proving burden of imposed structed not the best interests the child apply the Pakistani court did so procedure or a rule of law or evidence or applied standard as to undermine confidence Maryland public policy to contrary faithfully trial. ad- Having outcome of the Pakistani the mandate, as references to repeated hered to our evidenced unquestionably throughout, the circuit court that mandate it finding made when ruled: a definitive factual so-indicates, that indeed the welfare of expert opinion [t]he same, akin, child, if not the as certainly exactly the which is given child standard be the best interest the would consideration, as to the concerns appropriate paramount awarding would have in custody. that the court found that Courts there specifically “[t]he The circuit court on paper consider offered allegations would not [Pakistan] testimony offered in any being at all but would insist way true contending things that certain were person by party, the To that the best interest standard or not true.” the extent is applied, opined the court “it because was not the court had ordered to be and the child—[whom mother in person by appellant]12—were present produced attempt Ironically, minority posits that "the court did not 12. Mahak, years eight old....” the desires of who was then ascertain would production of the minor child who Pakistani court ordered preference custody; it was express able to have indeed been produce defy chose to the court’s order and not who testified, Dogar respect weight given be with child. Justice preference: minor child’s girl intelligent understands If is satisfied the the court leaving leaving leaving the implications of the mother or father statement, give weight to but if family, then the court will whole capable understanding what I that she is not the court considers allegations.” Notably substantiate the mother’s the Pakistani because, allegations court would not consider the observed, the Pakistani court “would insist on testimony of- words, fered, person, allegations other not on offered it not paper” simply appellant’s Hence question failure to it her to appear; produce evidence. The failure requires court concluded that “the law of Pakistan their courts paramount to to give consideration the welfare of the child” where the are and to parties present testify. available Were proceedings, to remand case further as the minori- ty urges, the circuit be obliged court would to simply reiterate that the court was prevented Pakistani from considering alle- gations offered show the best interest of the child was not served by granting custody appellee because the bald allegations were not supported by evidence. notably,

Most specifically the court concluded that the moth- er “has to prove by failed a preponderance of the evidence that which the Special Court of Appeals indicated she must prove, and this court must decline exercise its m jurisdiction Judge this case.” Kahl’s conduct of proceedings on re- mand and understanding commendable, his of Malik were notwithstanding the minority’s reference a single comment lack regarding the of evidence before the Pakistani court from it which could the best apply interests standard. The lack of evidence was occasioned exclusively appellant’s by failure participate refusal to personally in the proceedings in and/or Pakistan. A that, review of the record throughout, reveals doing by leaving by my my by am mother leaving leaving father or my family, they give weight. then will it order, Appellant, consequence defying thereby as a the court thwart- opportunity ed an to allow the Pakistani court take into consider- may persuasive ation what have been most evidence available as to best Unfortunately, interest of the child. we will know never what preference the child’s would been when the Pakistani court because, production ordered her appellant’s aas result of refusal to

participate personally proceedings, in the Pakistani has now five-year created a during preference hiatus which the child’s and feelings have been influenced the isolation from father her dependency appellant. carried out faithfully articulated Judge accurately Kahl to Malik. pursuant our mandate in us do this minority the would have put, what

Simply role, the function of our assume appellate is abandon appeal of on remand because re-try hearing and judge, the trial it would seem evident the result. While with dissatisfaction result, if we were to right reached the even Judge Kahl different result—which we do might reach a conclude findings that his were not not a close call not—it is even clearly erroneous. our addition, us both minority disregard would have

In issues to be appropriate in regarding Malik holding in re- court’s factual determination and the lower addressed Malik, our decision and now have our mandate sponse to of from natural turn, “length separation part, on the family rela- maintaining natural “potentiality parents,” future of the tions,” effecting the opportunities the “material own, “Mahak, no of her child,” through fault and the fact that half of her life country approximately this has lived in now ‘Americanized’---- undoubtedly increasingly and become has her and her half- continuously mother has lived with [and] sibling.” circumstance, the minor an unfortunate this is indeed

While nor adjustment, the cultural undergone child would not it relationships here had not developed those would she have removing conduct of the child improper appellant’s been for are Maryland. We absconding and from her homeland malingering one regard roads herein paving new Indeed, adoption proceed context of custody. seeking See, e.g., re courts have echoed this sentiment. ings, other Doe, 347, 535, 536, 638 159 Ill.2d 202 Ill.Dec. Petition John (1994) (‘When 181, appear the father entered his N.E.2d birth baby’s after his proceedings days adoption ance father, petitioners [adoptive as a rights demanded his It baby at that time. relinquished should have parents] litigation through lengthy, a prolong was their decision Clausen, fruitless, 442 Mich. In re ultimately appeal.”); (1993) 664-67, 502 N.W.2d 665 n. 43 (“[Pjrompt by action the father to assert rights, combined with the being prevented father’s from developing relationship with the child custodians, actions or the are courts factors or mitigate excuse the failure to establish such relation- ship.”). empathize

While we with the minor fully child and appreci- ate the attendant hardship readjustment, to her we must be precedent mindful that our dissenting colleagues would adopt have us set. Were we to the minority’s reasoning, our holding promote would the uprooting of children from their surroundings away home from the parent, non-custodial fami- ly, State, absconding and friends and the to this judge where a would be to obliged grant custody to the errant parent be- cause personal bonding readjustment and a to the new sur- roundings will have occurred the during pendency judicial proceedings. simply

This is not a case parent having custody where one legally pursuant to a lawful court order awaits the court’s determination of which parent ultimately custody. should have Nor is this a case about an American to citizen married someone from foreign country a or a custodial parent from a foreign country who has come to this country and forthwith sought relief from American court. Under such circum- stances, arrangements be made for may by visitation the non- in parent custodial order to in continuity facilitate the relation- ship between the minor parent. and the non-custodial words, court, referee, other the as a acting position a pendente issue lite judicial until such time as a orders determi- nation can be made who is fit concerning most to have custody.

Here, was, the natural father for period of over two years, only deprived child, not companionship the of his but he was ostensibly subject to the emotional trauma by occasioned not knowing where his child was for period that of time. Appellee also was constrained to incur expenditures just to ascertain his and, daughter’s whereabouts pending protracted this litíga- the to observe his tion, opportunity continues to be denied he emotional, physi- undergoing psychological, the daughter entitled to witness as their children changes cal all are parents parent is never able opportunity, once develop; denied development. child’s phase recreate of the guid- the child has been robbed point, More ance, love, Unques- with her natural father. and association the child for over two secreting actions tionably, appellant’s by appellant essentially efforts years legal constituted extra Pakistani and function of both the decision-making usurp who have the American courts should to interpose now be heard appellant minor child. Should she two-year period over the avoided transpired events then, by after she was tracked down detection and her legal to secure sanction for appellee’s investigators, seek legal extra acts? Hadick, Hadick, v.

Citing (1992), consider the minority that we should suggests separation siblings. Again, policy Maryland regarding first uniting step-siblings the circumstance of relationship of her adulterous and her place consequence is a country to this wherein she secreted subsequent flight years. father for minor child from natural two “should be chastised minority posits merely ... she and her contesting Pakistani decrees because acknowledged, are Pakistani birth.” We Malik, the 638 A.2d Circuit jurisdiction County “Mary- had because Court for Baltimore ” nationality ‘home state.’ of land is the child’s the except child is not an issue insofar as and the minor from rely alleged disruption to on the resultant minority seeks parties the after five All were before uprooting years. child to subject jurisdiction precisely the Pakistani court and its and Maryland that three citizens of would same manner A jurisdiction of a court. Maryland should be under always with the personal jurisdiction begins of determination is parties of the and one’s residence geographical location a of accident of one’s birth. initially by-product absolutely parties There was no nexus between the to this County case and the Baltimore Circuit until appellant Court fled from and defied a court to produce Pakistan order was, minor Appellant years child. and continued for two be, fugitive legal system. Upon being a from the Pakistani found, to enlist the aid of appellant sought the Circuit Court County appears Baltimore what to be a conscious and apparently calculated plan circumvent the laws of both since, jurisdictions during two-year period appellant se- child, she, essence, creted the minor unilaterally appropriat- custody thereby ed to herself and denied custody or visitation appellee without authorization from any judicial authority. words, In other took she the law into her own hands.13 Maryland, virtually every jurisdiction 13. The laws of and in the United States, provide parte parent for the issuance of an ex order to a who is custody constrained to remove his or her from of the other parent where the circumstances warrant. Maryland Code Annotated 9-305, authority § proposition for the that it is unlawful Family Law for a relative person who knows that another is the lawful custodian of “abduct, take, age years a child under the carry away sixteen or place the child from the lawful custodian to a outside of this State.” 9-306(a) (b) provide: Section (a) provisions § Petition.—If an individual violates the 9-304 or subtitle, § may 9-305 of equity the individual file in an court a petition that: (1) that, done, states at the time the act was a failure to do the act health, present danger would have resulted in a clear and to the child; safety, or welfare (2) revise, amend, clarify seeks to order. (b) (a) petition provided is filed as in subsection of this Defense.—If act, that, finding by section within 96 hours the court at the done, time the act was a failure to do the act would have resulted in a health, present danger clear and safety, to the or welfare of the child complete any brought is a defense § action for a violation of 9-304 §or 9-305 of this subtitle. This is purposes Maryland consistent with one of the stated Custody Uniform Child Jurisdiction Act—to “deter abductions and other unilateral removals of children undertaken to obtain 9-202(a)(5). § awards.” Fam.Law, Md.Code Ann 9-306(b) plainly provides Section whereby the mechanism one who legal has taken a may petition child without sanction file a within 96 taking alleging hours of the child that failure to act would have resulted health, present danger safety, in a clear and or welfare of the Appellant any child. petition, any attempt never filed such nor made hand, in the case as we have to the true issues

Returning observed, to subsequent appel- none of the events previously to country inquiry are relevant the court’s lant’s arrival this jurisdic- the circuit had to Malik as to whether court pursuant Pakistan, happened tion. That involved what inquiry happened not what has here.' requires that our today we are mindful decision

While life, way and readjust to her former culture minor for unjust for us to reward manifestly it would be has, pursuant of law which to her brazen disdain for rule Malik, for proper made a that the forum deter- determination minor To the best interest of the child is Pakistan.14 mining any legal determination until her whereabouts were kind to seek a discovered. herein, notwithstanding may petition Appellant, 14. decision our modify court to the Pakistani decree. Pakistani 9-214(a) pertinent part provides in that a decree of Section unless: another state shall not be modified (1) appears it the court of this State that the court that rendered to jurisdiction jurisdictional now under the decree does not substantially in prerequisites accordance with this subtitle or has (2) jurisdiction modify to the decree and declined assume jurisdiction. of this State has strongly record reveals that the Pakistani court The evidence Dogar respect, jurisdiction. In this Justice testified: retains petition says, and goes and files before the court If she back parte, my absence the court case was decided ex and from intentional, compulsion, give she it was due to some which can no, one, two, says, compulsion, she I am here I whatever and now. parte proceedings I ex set aside. am here. want the be only, will grant will this one and the court call the The court issue upset, agreed, upset party if it that order and then other and then parties again give give opportunity a full both evidence. will presence. again Malik have to make a statement in her Mr. will engage bring will counsel. He will be asked to his witnesses. She statements, produce and will be asked to witnesses and make She comes, according parties, the whole evidence both when it then case, decided, good maybe presents she will be evidence gets custody. Now, example, that he an sake of she has said allegation paper. not in If alcoholic. That is a mere It's court. well, evidence, maybe will comes some then the court she with person. good he is not think

331 inclined encourage be to all who are so otherwise would decide state and remain outside the laws of their home to circumvent above, during Dogar stated numerous times addition to the Justice appellant's testimony courts would entertain that the Pakistani his petition modify. to .Tudge/ASJat Karachi of the Vth Senior Civil Significantly, the Order provides: East I, any subsequent are may point-out that in case events here [sic] order, created, it apply for review of the but the delendent can [sic] Court, subject production of the minor in as laid down page 645. P.L.D.1985 Karachi (1992 Commentary § Similarly, 17 of the Guardian and Wards Act Ed.) heading always temporary” provides under the "Orders be, necessarily Act must not the nature Orders under the time, unalterable; things, they be altered from time to final and can require. as circumstances Melnick, 555, Furthermore, 539, v. Md. Harris 314 (1989), § by appellant, cited refers to the Commissioners’ Note to Act, § [Maryland’s of the Uniform and delineates circum- 9-214] jurisdic- causing "decree-rendering state to lose modification stances a tion”: example, if was awarded to the father in state 1 where For years children for two and thereafter he continued to live with the 6)4 (3)4 kept months his wife the children in state 2 for months beyond privileges) permission of the her visitation with or without husband, preferred jurisdiction modify the decree state 1 has despite in the meantime become the "home the fact that state has If, however, away state” the child. the father also moved from interstate, 1, jurisdiction whether state that state loses modification Clark, jurisdiction under local law. See not its continues Also, (1968). if father in the same Domestic Relations 322-23 keep live in but let his wife the children case continued to state years custody rights asserting for several without his and without jurisdiction of visits of the children in state modification state would cease. above, appellant clearly may not seek modification of the From the court, Pakistani court order the circuit because the Pakistani courts jurisdiction principle Maryland’s have retained under the akin to standard, i.e., any change in "in case subse- circumstances modification Thus, may petition quent are since events created.” decree, § Pakistani court for a modification of the Pakistani 214, under 9- modify Consequently, a court of this State "shall not that decree.” appellant may not a modification of the Pakistani decree in the seek petitioned modify circuit court until she has first the Pakistani court decree, juris- declines to assume its and the Pakistani court thereafter purpose. excerpts record also diction for this cited from the now, original appellant may, indicate move to set aside the even representation her absence “was due Pakistani decree based on her compulsion” to some and "not intentional.” sufficiently long of time period court for any the reach of should be that he or she argue fugitive parent permit or her fact that his notwithstanding awarded bases he or she hardship upon which occasioned actions to countenance such We decline claim for relief. his or her result. BALTI- COURT FOR THE CIRCUIT OF

JUDGMENT AFFIRMED. MORE COUNTY APPELLANT. BE PAID BY TO

COSTS ALPERT, E. HOLLANDER, J., in which PAUL dissents (Retired) concurs. Judge

HOLLANDER, dissenting. Judge, In dissent, I for several reasons. do so I respectfully preserved. has been view, counsel regarding the issue my majority court and the I that the trial Additionally, believe child’s views “not relevant” the characterizing in have erred had to judge the critical issues respect with in court erred Therefore, I that the circuit conclude resolve. failed to counsel court-appointed the child’s when proceeding Furthermore, of the Pakistani court my reading appear. apply courts did not that the Pakistani convinces me orders result, a standard. As of the child” the “best interests I re- Accordingly, would comity. orders are not entitled verse.

I. attorney repre- appointed court properly The circuit Malik, Mahak year old the interests twelve protect sent and with this controversy. Consistent is at the center of the who Malik, on remand presented evidence was directive Court’s application law and its regarding Pakistani this case. to note on her calen- attorney Mahak’s failed

Inexplicably, at the appear not either hearing date of the did dar the held on another that were closing arguments trial or at the Nonetheless, without judge proceed the trial elected day. majority holds that the issue attorney. The the child’s preserved is not doing erred so judge the trial whether objection. review, timely did not make a because our concludes that preserved, majority were Even if the issue err, not because “the interests trial did judge I hearing.” the focus of the remand child were not parties’ disagree.

A. preserved, the counsel issue is not concluding 8-131(a). provides Md.Rule It majority has misconstrued issue that, non-jurisdictional we will not review a ordinarily, the record to have been raised plainly appears by “unless it ” (Boldface added). The use the trial court.... by or decided requirement that the rule’s plainly of the word “or” indicates Therefore, an issue is disjunctive, conjunctive. pre- by party for our if it was either raised served review decided the court.1 with its purpose. This of the rule is consistent interpretation “ parties rule is intended ‘to ensure fairness for all ” orderly and to administration of the law.’ promote case State, 655, 661, (1969), quoting v. 254 Md. 255 A.2d 28

Brice (1954). State, 488, 495, By Md. Banks v. Bell, 178, 189, Md. object, counsel to see State v. 334 requiring (1994), error, alleged 638 107 is on notice of an judge A.2d v. opportunity Clayman then has an to correct it. See present language with earlier versions that 1. The of the rule contrasts by lower required to have been both raised and decided an issue here, court, pertinent pre- exceptions not in order to be with certain 1085, example, (repealed). Rule See Rules 1085 For served. Court, part: governed appeals pertinent "This which to this stated any point question ordinarily will not decide or which does not Court by plainly appear by the record to have been tried and decided change lower court.” But a rule substituted the word “or” for the 1989 Thus, majority support word "and.” three of the cases that the cites to State, 225, 231, (1982); Medley Md.App. position, v. 52 448 A.2d 363 its State, 695, 713-14, (1980); Tichnell v. 287 Md. 415 A.2d 830 Dresbach State, 451, 453, (1962), inapposite, are because v. 228 Md. 180 A.2d 299 change. they were rule decided before critical 334 409, 416, (1972); 266 George’s County,

Prince Md. State, 246, 254-55, 66 A.2d 725 Md.App. v. 503 Robinson (1986). critical, then, judge’s opportunity is is the What consider an issue.

Lawyers not commit error. Witnesses do not commit do not error. do not commit error. The Fates do Jurors error, Only judge by commit can commit either error. failing by ruling erroneously upon, by or when called to rule circumstances, occasionally by ruling. counsel make a (1989) State, 395, 397-98, 553 Md.App. DeLuca v. A.2d (emphasis supplied). case, upon by

In this the court called to rule de- presented. Clearly, circumstances the counsel issue was that, at the by cided the circuit court. The record reflects beginning hearing, noted that Mahak’s coun- the judge Nevertheless, sel was not he decided present. expressly Thus, 8-131(a), plain under the of Rule proceed. language preserved issue is for our review. O., O. v. Jane 601 A.2d case John (1992), majority position on which the relies to its support There, inapposite. non-preservation, counsel for the to be All of the

appeared hearing at the and asked excused. affirmatively to the absence. More parties then consented over, the Court the father had not although said court, in the not the issue circuit Court did “raise[d]” discuss whether the issue had been “decided.” majority’s analysis much of the is the claim that

Permeating object. timely there are provisions did While object as the Maryland requiring party rules as soon rules, terms, grounds apparent, apply become these their contrast, objections Rule to the admission evidence.2 In 2-517(a) example, provides requirement objec- 2. For Rule such a case, 4-323(a) tions to a civil the admission evidence in and Rule 2-517(a) requirement provides a similar for criminal cases. Rule states, objection pertinent part: “An to the shall admission evidence be made at the time the evidence is offered or as soon thereafter as

335 or- or rulings to other 2-517(c), “objections governs which ders,” states: or on appeal trial court by the of review purposes

For at the order, party, that a it is ruling or other any sufficient to makes known sought, or order is made ruling time take the court to desires party the action that action of the court. objection or the (Emphasis supplied). 2-517(c) timely that a suggests of Rule language plain is differ- “sufficient” condition But a

objection is “sufficient.” in phraseol- The difference condition. “necessary” from a ent 2-517(a) 2-517(c) indicates and Rule Rule ogy between wished no If the drafters accident. the choice of words than ones concern- rulings other timely objections require how to do evidence, obviously knew they the admission ing so. view that majority’s apparent

I also troubled am forfeited may readily case be in a rights minor child’s mael parent. the inaction of through whether a depend strom, rights child’s should in the context of child Even timely objection. amade parent away their children’s cases, bargain cannot parents support Adminis Stambaugh Support v. Child rights. Enforcement (1991); v. tration, 106, 111, A.2d 501 Shrivastava 591 323 Md. (1992); 320, 327, Lieberman Mates, 612 A.2d Md.App. (1990). Lieberman, By A.2d 1157 v. hearing that attorney very at the right Mahak’s analogy, mere away washed future not be determine her should would That result timely complain. mother did not because her ly that, any failure notwithstanding principle ignores courts is equity patriae power object, “parens necessary may be to afford minors whatever relief plenary Otherwise, objection is apparent. objection grounds for become added). (Emphasis waived.” 336 v. Wagner Wagner, their best interests.”

protect (1996). 1, 20, 674 A.2d in In re reasoning Appeals Adop

The of the Court of A91-71A, 538, 557, 640 A.2d tion/Guardianship No. 334 Md. (1994), County Social Services Washington Dept. and Clark, 190, 199-200, (1983), v. 296 Md. objection was The Court determined that no persuasive. appoint the issue of a court’s failure to necessary preserve child, appointment counsel for the because independent statutorily counsel was mandated. The Court also noted object. Certainly, was unable to these cases the minor child they adoption because involved an distinguishable, are altogether trial courts failed guardianship, appoint and the position, But in Mahak’s this is a distinction counsel. to one of the circuit court’s decision without a difference. The effect silenced. is that Mahak’s voice was

B. that, if majority’s I also with the conclusion even disagree circuit court not abuse its preserved, the issue were did without her At the conclu- proceeding attorney. discretion stated, evidentiary hearing, judge sion of the the trial inter alia, relevant,” was “not because the position that the child’s the two issues in our man- hearing only specified concerned the trial court concluded that it Consequently, date Malik. position at a where the child’s is to be taken point was “not view, majority states adopting into consideration.” parties’ that the “interests of the child were not the focus of hearing,” hearing the remand that “the remand was not the ultimate issue of the child’s purpose determining interests,” that “the matters for presence best which yet the child’s counsel would be were not at issue necessary ...,” hearing only “early stage” the remand an proceedings. of the majority misconstrues the vital role of counsel Mahak’s evidentiary

at the and overlooks the child’s fundamen- hearing case, tal right participate, party; right, Mahak’s Moreover, the issues counsel. through be exercised could issues dispositive in Malik were in our mandate forth set Mahak’s determine Indeed, outcome would case. her with in the States remain United she would fate—whether 1990, or here since mother, has resided whom she with wishes, to Paki- returned, her against she would be whether Consequently, feared. she apparently and to a father stan proceedings; of the “early stage” merely was not hearing would comity issue ultimate resolution the trial court’s and, if its hearing at that occurred turn on what necessarily significance. only hearing it will be ruling upheld, is relevant, and was exactly what position Mahak’s light, otherwise. travesty to conclude it is a fundamental and the position child’s relevance of the

The the function by underscored role are of counsel’s importance custody dispute. in acrimonious counsel an of the child’s (“F.L.”) (1991), § 1-202 authorizes Ann., Fam.Law Md.Code provide a child to counsel for appoint court to the circuit position. the child’s analysis” of “independent with an court 436, O., 601 A.2d 149. at supra, Md.App. v. 90 John O. Jane § afford the court Indeed, 1-202 is to purpose “[t]he behalf of speak who will on to hear from someone opportunity (citation 435-36, Id., A.2d 149 at 601 Md.App. the child.” 90 omitted). thus The statute internal marks quotation and in parents of the positions interests and that the recognizes with those necessarily congruent these cases are who will entitled to an advocate children, that the child is and champion position. the child’s 394, 1162, Levitt, 556 A.2d Md.App. 79 case of Levitt v.

The (1989), noteworthy. denied, 549, 1118 is Md. 560 A.2d cert. appoint

There, required a trial court was we held that custody proceeding, modification for a child counsel the appoint ever moved for apparently had although party no Id., 403-04, A.2d 1162. ment of counsel. counsel, of her presence without the way, In much the same wanted and her counsel not heard. While Mahak Mahak was unable Mahak’s counsel was deny comity, the court Pakista- that the evidence to demonstrate attempt any to elicit Through ni had not the best interests test. applied courts evidence, witnesses, the introduction of questioning might persuade her counsel have been able argument, court position court to the child’s the Pakistani adopt comity. decisions were not entitled jurisdictions recognized Numerous cases other of actual the child’s counsel importance participation in In Supreme battles. The Montana Court’s decision Kramer, (1978), 177 Mont. 580 P.2d 439 Marriage re judge That court held that the erred example, is instructive. issue in a divorce when deciding proceeding did not appointed participate any counsel for the children said, 580 P.2d at hearings. What pertinent here: [authorizing of the statute trial courts to purpose counsel for is to

appoint independent provide children] children with an advocate who will their interests represent This that the parents’ attorney and not the interest. means in the He passive hearing custody. is not to take a role actively present the children represent should can marshal the best concerning court all the evidence he interests of the children. also, Court, 267, Superior J.A.R. v. 179 Ariz. 877 P.2d

See T.S., 1323, 509, 1331 v. 23 582 (Ct.App.1994); Conn.App. G.S. (1990) (court if plain commits error it fails to appoint A.2d 467 for children in independent custody dispute counsel involved abuse); of sexual In re allegations Marriage that involved Barnthouse, (Colo.Ct.App.1988), 765 P.2d 610 cert. denied sub Barnthouse, 1021, 490 109 nom.. Barnthouse v. U.S. S.Ct. (1989) (child’s 1747, attorney 104 L.Ed.2d 184 should take an evidence); in presenting Veazey Veazey, active role v. 560 P.2d (Alaska 1977). 382, 390-91 did not fulfill her re- question, attorney

Without Mahak’s when she failed to at the or at sponsibility participate hearing closing arguments. undoubtedly While the dereliction was unintentional, to accidental and Mahak should not be forced bear the burden of the error. We should be mindful of what

339 in v. Jones Appeals Court said District of Columbia the (D.C.1967), Roundtree, 877, in a different albeit 225 A.2d attorney ... to visit the of an are hesitant sins context: “We is minor.” client, that client especially on his when C. proceed- did err in that circuit court not determining In counsel, that majority “[t]he states without Mahak’s ing in anything meaningful offered attorney could not have child’s In appellant’s already presented.” to what counsel addition conclusion, the assertion majority relies on of its support anything not have presented would child’s counsel she hearing. My evidentiary if even she had been at helpful obvious; in innocent mistake was concern however counsel’s attorney self- appear, the child’s has a substantial failing In- harm to her client. minimizing resulting interest deed, position of her and her own spite position client’s appellate argument she at the comity, appeared opposing An acknowl- appellee’s and submitted an brief. appellee made presence her her would have edgement by an admis- be tantamount difference the outcome would sion malpractice. view, her counsel’s my tangibly prejudiced by Mahak was were appellant’s appendix

failure to Included participate.3 Rosenberg, Dr. who Mahak reports from Leon examined State, majority 3. cites v. Velez (1995), prejudice support its on the is not conclusion issue. Velez point. proceed pretrial concerned election at the trial court's Velez here, by hearing hearing suppression contrast, absence of counsel. The Moreover, on the our was tantamount to a trial merits. depended only on the fact the decision did not decision in Velez outcome, safeguards existed but on the fact that several affect also 216-17, First, protect 387. defendant. See id. A.2d testimony witness. collateral defendant's counsel missed the one Also, A.2d defendant took Id. at 387. counsel another Moreover, impor “copious” notes for Id. and most absent counsel. tant, testimony gave opportunity to and the court review the counsel he the witness cross-examination. decide whether wished to recall 212, highly fact- 664 A.2d Our decision in was thus Id. at 387. Velez sensitive. the circuit court His proceedings. of during pendency of extremely to show that Mahak was fearful reports purport says reports that the are irrelevant majority her father. The “extraneous,” conducting the circuit court was not because that, it with since the hearing; agrees appellee a best interests below, they not admitted cannot be considered reports were counsel point. That is Because child’s precisely here. attempt she could not introduce present, introduced, been Mahak’s counsel reports. reports Had the important could have relied on them show deficiencies not done highlight the Pakistani and to what was proceedings Thus, advanced reports or considered there. would have that, claim to consider or address Ma- by failing the child’s father, apply hak’s fear of her the Pakistani courts did not best interests standard. .only way prejudice

The to show is to demonstrate what at the participated Mahak’s counsel could have done had she majority’s is thus circular—it de hearing. reasoning prejudice clares there is no evidence of from counsel’s it appear, simultaneously strips appellant failure to ability prejudice. approach to establish such This circuitous to proceed may means that a court’s decision without counsel error, practically only way never be reversible because and show what prejudice go beyond establish is to the record if had participated counsel could have introduced he she I regard, In this find the Court’s hearing. compelling v. Board Montgomery County comment Town Somerset (1966). 52, considering 245 Md. Appeals, prejudice whether actual must be shown to establish denial said, process, due the Court “It would be a procedural mockery justice person complain to hold that a cannot the denial of the to cross-examine unless he can show right been; what the result of the cross-examination would have Id., it unexpected revealing.” that result is often as Wagner Wagner, supra, Md. at 225 A.2d 294. v. Cf. (“there requirement 674 A.2d is no shown of due can be prejudice process actual be before denial

n established”). would that a remand footnote, also asserts majority In a the bite a second “to allow nothing except accomplish proceed- in these bystander not a casual Mahak is apple.” the v. Krebs chattels.” dealing with not here are ings. “We (1969). young is a She Krebs, 257 A.2d 255 Md. these outcome of by the affected profoundly be who will girl mother a second the gives a remand Whether proceedings. Mahak give would a remand point; not the apple at the bite no less. requires fairness Fundamental only real bite. her that the child’s majority’s view sum, the accept In I cannot counsel, Mahak’s compromised. Without was not position respect with nor considered articulated was neither position of her that were determinative complex issues critical and the her interests unable to have that Mahak was The fact future. will have outcome of which in the proceeding, represented view, enough. life, is, my “prejudice” in on her impact colossal II. Pakistani that the majority’s conclusion I with the disagree the best applied courts there show that the court orders that, analyz- majority The admonishes standard. interests I on the ball.” issue, keep eye “to important [our] it is ing the however, that, analysis ultimate submit, its respectfully orders, strikes out. majority the the Pakistani court

A. confusion matter, I there is some note that As a threshold found that actually court the circuit the record as whether of the child best interests had applied Pakistani courts hearing, conclusion of ruling oral at the his standard. that, while the persuaded “The court is judge trial stated: the best interest apply apparently Pakistan did not courts decision, because it is to their the child standard to substanti- person not present the child were mother and He later supplied). (Emphasis allegations.” the mother’s ate had that, the mother the child and persuaded “I am stated: if give their courts requires law of Pakistan been present, best interests of the child.” consideration paramount cir- These statements indicate that the (Emphasis supplied). found that the Pakistani courts had actually cuit court the child standard. This view is the best interests of applied that, fact when counsel asked the supported by the order to be submitted counsel should proposed whether the “I don’t think findings, judge replied: the court’s contain findings expressed need to be the order. findings on the record.” are

Nevertheless, order, subsequent in its written the Pakistani prove had “failed to the appellant [that] stated that not the ‘best interest of the child’ standard.” apply court did Thus, on the record. It flatly contradictory findings there are appellee favorable to is a dispositive finding is not that the rulings. oral subsequent written order executed the court’s Davis, Davis v. 335 Md. Appeals As the Court stated (1994), “the issuance of formal subsequent judgment not that preclude finding written order does orally rendered on an earlier date.” actually contradictory findings merely The is not problem concern; appropriate with respect academic it is crucial the circuit standard of review. We must determine whether are erroneous. Our decision clearly court’s factual conclusions subjected say to that test. To that hinges on which decision is that Pakistani courts finding applied the circuit court’s clearly child test is not erroneous is best interests of the its completely saying finding different from the best interests of the child apply Pakistani courts did not clearly test is erroneous. orally suggested also that the trial court significant

It is apply courts did not the best interests of that the Pakistani standard, did not appellant albeit because and Mahak may in Pakistan. the trial court have meant appear While action, it blame for the Pakistani court’s is critical. said Malik underlying finding expressly that is We if comity are not that the Pakistani decisions entitled the child apply Pakistani courts did not the best interests of 533-584, Malik, 638 A.2d 1184. We standard. that, apply if courts failed to say the Pakistani did is appear, comity did not because the mother proper standard warranted. it calls the concern when majority minimizes this the lack of single regarding comment finding

court’s initial “a apply court from which it could before the Pakistani evidence court did not But the circuit the best interests standard.” contrary, To the it to a “lack of evidence.” simply refer applied courts had not initially found that the Pakistani Further, “single hap- comment” best interests standard. issue of this case. finding paramount to be a pens found, we should not it unclear the circuit court As is what the future of a child particularly when speculate, be forced trial clearly If cannot determine what the is at stake. meant, minimum, at a a remand for clarification judge required.

B. is whether the question Malik makes clear that a cardinal the best interests of the child stan- applied Pakistani courts certainly phraseology dard. The Pakistani contain opinions that sounds interests standard. But careful review like best makes that the Pakistani courts of the Pakistani orders clear meaning the best interests standard within the apply did Maryland law. of 574, (1987), Queen Queen, v. 308 Md. 521 A.2d 320 the

Court defined the best interests standard: in likely

“For of what is to be the purpose ascertaining the of a child a court may properly best interests and welfare consider, among things, persons other the fitness of the custody, adaptability the of the custodi- seeking prospective child, task, the age, an to the the sex and health of the child, spiritual well-being and moral of the the physical, surroundings environment and which the child will be and, reared, child, likely the influences to be exerted on the choice, if enough he or she is old to make a rational 344 Annulment, Nelson, of the 2 child. Divorce

preference 1945). (2nd ed., It stands to that the § 15.01 reason fitness custody importance. is vital person of a however, consideration, general is the overall paramount well-being child.” Hild,

Id., 320, v. 221 587-88, Md. at 521 A.2d Hild quoting 308 (1960). 357, 349, 157 442 Md. A.2d Queen, we

In addition to factors enumerated added (1992), Best, 644, 655, 613 1043 v. 93 A.2d Md.App. Best separation also consider from “length the trial should natural fami- parents,” “potentiality maintaining the natural relations,” opportunities affecting “material future ly child,” or “prior voluntary abandonment surrender.” Best, 656-657, also Md.App. at 613 A.2d 1043. See Mont- 93 Sanders, County Department Social v. 38 gomery Services (1978). 406, 419-21, A.2d 1154 I am Md.App. 381 unable any contemporary authority suggesting find best custody parent adverse to a compels interest standard award order, who, violating without a court nevertheless leaves jurisdiction the home with child who is the focus of flees battle. Maryland emphasize overriding cases in im- Numerous Indeed, portance recently of the best interest standard. dispositive that the interest standard is “the reiterated best Wagner Wagner, v. factor on which base awards.” 38, original). A.2d (emphasis supra, Moreover, 290, 303, Taylor Taylor, v. 306 Md. 508 A.2d 964 (1986), that the best interest of the child “the Court said all other factors See also objective virtually speak.” to which (1992) Robinson, 507, 519, v. 328 Md. 615 A.2d 1190 Robinson (the concern”); interest is the “primary best standard Md. McCready McCready, v. (best

(1991) “appropriate interest test is the standard” 172, 175, 178, custody); Hoffman, determine Ross v. 280 Md. (1977) (“the A.2d 582 best standard controls” 372 interest determinative”); “always v. custody dispute Fanning and is (1969) (best 18, 24, Md. A.2d Warfield, 252 248 890 interest Anderson, test”); v. standard is “ultimate Dietrich 185

345 (the (1945) standard is 103, 116, best interest Md. Walker, Md.App. v. Shunk importance”); transcendent “of (1991) (“The any of 396, guiding principle 389, A.2d 1303 of decision, original an award whether it be of the thereof, the protection custody or a modification Kramer, child”); Kramer v. interests of the welfare and best (1975). in mind 620, 623, Bearing A.2d 328 standard, I of the best interest importance the undisputed in issue. of the Pakistani orders turn to a review Judge at of Senior Civil In the of the Court Vth opinion judge awarded East, Karachi issued October the child because removed custody to Mr. Malik father and “the father custody” of her from the “constructive The court then over the child. cannot exercise his control” “by removing for the proposition cited a case previous the minor child of deprived the defendant has minor U.S.A. father, has means that she an to meet her which opportunity well- mental and something [injurious] [e]motional done minor, of Hizanat.” thereby right has lost the being of the gave support reasons that the court Those were the its conclusion. findings as to the

Noticeably any absent is discussion of the parent. any Nor is there consideration fitness either living or surround- of the child or the standard well-being Further, the court would be reared. did ings which Mahak Mahak, who was then to ascertain the desires of attempt old, attorney of an through appointment either eight years of the spite for the This is through parties. her or counsel 17(3) Act § Pakistani Guardians and Wards fact Act”) (“the preference allows the court to consider intelligent form an enough “if the minor is old minor preference.” Pakista- was no effort significant

It is also there Considering attorney ni court to for Mahak. appoint for children contested importance independent counsel 346 290-293, failure offends the at supra

custody disputes, courts. Maryland of procedure appel- noted facts, the Pakistani court of

In recitation its “is of former husband ad[d]icted that her allegations lant’s made him unable and the said habits and tranquilizers Alcohol to look after obligation his discharge life and daily to deal with Malik and that Mr. and the minor” [appellant] the welfare [appel- consequences of dire extend threats used to the minor away to snatch threat[en] used to and also lant] threats the minor started Due to said [appellant]. from the ‘Bachao utter words time and used to awakening night unpleasant minor from In order to save the Bachao.’ the [appellant] minor the welfare the atmosphere along with the minor.... Karachi for U.S.A. left consider, the or resolve investigate, failed to Yet the court and do- substance allegations appellee’s serious mother’s concedes, Dogar, appel- Justice majority As the mestic abuse. not witness, Pakistani court did the “opined expert lee’s appear. she failed to because allegations,” appellant’s consider in Pakistan personally appear not appellant did Although abuse,4 unlikely it extremely is allegations present of a child to a award simply would Maryland judge misconduct, merely because of abuse or accused parent Rather, attempt judge would appear. parent other fails claims, safeguard in order to validity to ascertain F. II & Richard John Fader of the child. See well-being (2nd 1995). Family Maryland § ed. Gilbert, 5-8 J. Law because, failed to return to Pakistan Appellant explained that she 4. adulterer, severely punished. she could be given her status as an traditions, majority which the laws and view of Pakistani and Islamic reviewed, recognized that apparently thoroughly the mother also likely result in an award proceedings in Pakistan would Hanke, father, v. notwithstanding Hanke her claims of abuse. Cf. 65, 72, (1992) ("Where evidence is such Md.App. 615 A.2d 1205 sexually parent is justified believing that the other parent that a is child, parent will that the surrender abusing the it is inconceivable stringent safeguards----”). abusing parent without child to the See sure, statutorily required. investigation is To be (1976). Hadden, 577, 587, A.2d 641 v. Powers however, when our courts are, circumstances There warranted, to enable the investigation that an recognized child. is best for the doing mission of what court to fulfill the Ouellette, 246 Md. v. See Ouellette issue], (“we

(1967) [custody the that the determination of think children, have deferred should been ages of the due investigation made an agency had qualified until after a Jester, 162, 171, chancellor....”); 246 Md. 228 v. Jester the (1967). Dalton, 252, 251 Md. v. 829 See also Shanbarker A.2d (1968). allega 259, appellant’s In the face of 247 A.2d 278 courts, the Pakistani court tions, known to the which were v. child’s See Ross safety. to assure the sought should 176, 582, citing Dietrich 280 Md. at 372 A.2d Hoffman, supra, (“a Anderson, of 185 Md. at court supra, v. inter guardian may as a of all children and chancery stands ... advance their welfare and any way protect fere and interests”). is not a denial of the accusations Appellee’s independent investigation. substitute for view, squarely the Pakistani court order fits within my (Fla.Dist. Al-Fassi, of v. analysis the Al-Fassi So.2d Ct.App.1983), favorably opinion which we discussed our Malik, There, at 638 A.2d 1184. Florida’s grant comity court declined to appellate intermediate that awarded to a father to Bahamian court order Americans,” becoming “little of avoid the risk of the children’s Arabia,” of heritage losing the cultural of “losing Saudi 665-66, at 668. The court royal their inheritance. 433 So.2d comity Bahamian decree was not entitled to reasoned the public policy basing it did not conform to Florida’s of because on the of the children. Id. at best interests decisions particularly 668. The Florida court noted that the Bahamian had not all factors in Florida’s best court considered the interests of the child test: (1981) 61.13(3), the Florida Statutes states that

Section affecting shall consider and evaluate all factors the court child, of the best interests of the and enumerates some missing, among conspicuously There are factors. significant court, following the by the Bahamian factors considered 61.13(3): (1) of time the length of Section considerations desirability environment and lived in a stable children (3) (2) children; education of continuity; maintaining competent based on stability parents psychological Although (4) evidence; parents. health physical the best interests to have considered purports the decree interests, children, as set based on those little evidence statute, to the court. The factor presented by out losing “risk” of Bahamian court was the focused on raised as if the children were royalty the inheritance way to the interests Comity give must “little Americans.” over exercising parens patriae jurisdiction of the state best recognized objective protecting child with the of the child. interests

Id., (emphasis supplied). at 668 433 So.2d Al-Fassi, Bahamian court order issue

Like the for the “wel order, concern professes which Pakistani it child, no indication that gives nonetheless fare” of the Rather, the court interest factors. all of the best considered the father because custody belonged with merely said that to “control” right with the father’s had interfered indulge pre conclusive appeared the child. The court ability with Mr. Malik’s interference appellant’s sumption Mr. custody belonged with meant daughter to see his of the interests of the not the best application Malik. That is in In re test, it. As the Court stated as we have defined A91-71A, supra, 334 Md. No. Adoption/Guardianship ... and controlling adoption factor 640 A.2d “the raising the not the natural interest custody parent’s cases is of the child.” child, serves the best interests but rather what Judge III Additional District of the Court of judgment The East, appealed previous Ms. Hosain at Karachi which denial of the flawed. The mother’s ruling, equally court’s is on the child, emphasis the near total access to the father’s child, were apparently to “control” the “right” father’s Like the court based its decision. on which primary grounds exclusively almost court, court focused appellate the lower of “con- rights with Mr. Malik’s Hosain’s interference on Ms. custody” or “control.” structive Malik, the court custody to Mr. affirming the award removed from fact that the minor has been

said: “The her of hizanat right The mother has lost access of the father. in constructive minor is under law deemed be of the who right therefore the mother has lost custody of father [the] hizanat____” “father court also made statements that the The custody of the minor” be deemed to be constructive should custody mother of the of a Mohammadan right [sic; from the subject to the control of the mother minor say or translator meant to appears context it that the court the wishes away against and if she takes the minor “father”] to a where father cannot exercise place [the] of the father authority and her and control she acts without supervision of the minor away the minor amounts to removal taking from of the father. custody the court based its decision legal authority which presumption

further establishes the conclusive apparent interference with the father’s control the child mother’s quoted decree. The court from was the basis Churagh of PLD Lahore 382 Mst. Bibi v. the case Khadim Hussain:

“If a who has the hizanat of a denies the ch[i]ld woman child, his or her father of the who is under Muslim law child, she must be consid- guardian, natural access to from the construc- ered not to have removed the child father, something done tive but also against which is the welfare of the minor....” court’s allegations of abuse are included the Appellant’s opinion: during they sepa-

It is also contended that the time lived to be nearer to rately happened since both of the houses used to visit [appellee] position each other the a drunk for consequences the and extended threats of dire appellant minor away force to snatch and used appellant life of the accept [appellee] to coerce daughter badly also affected to his wishes. This according to go hours get up during night used to mind of the minor who aggressive due to the ‘BACHAO’ ‘BACHAO’ and cried appellee. at the hands of the and maltreatment behav[ior] that the court considered But, is no indication there again, lower court to task or took the allegations these serious it is clear foregoing, to do so. From failing interests of the truly apply not best court did appellate had. than the lower court any child test more J Judge/AS Senior District analysis of the Court Vth East, 10, 1993, concededly August dated at Karachi & R.C. standard. Nonethe- best interests of the child closer to the that sounds less, lip something court service paid while the standard, apply it still did not interests of the child like a best that standard. the court reasoned awarding custody appellee, minor removed the of the “forcibly Hosain had

Ms. father, of’ the Ms. Malik from the M[a]hak lover,” and accompanied by life her “living Hosain was sin child. It guardian” “natural of the that Mr. Malik was the society in “an [which] the mother lived unislamic added that of the minor being in the welfare and well will not be in an living “a business man Mr. Malik was daughter,” while Although character.” society with a moral Islamic her paramour, Hosain had a child with mentioned that Ms. husband, or address her it did consider who is now her This is remaining half-sibling. with Mahak’s interest that courts should policy Maryland -with the inconsistent Hadick, Hadick v. siblings. See separation avoid denied, 626, 748-49, A.2d cert. 327 Md. (1992). Overall, discussion amounts to conclu the Pakistani court’s order at issue As with the Bahamian court sory statements. Al-Fassi, weighing there is no indication of supra, test, or a in our best interests factors embodied various consideration of the child’s need for stability. See McCready 481, (“The v. McCready, supra, 323 Md. at 593 A.2d 1128 desirability maintaining stability the life of a child is well Krebs, recognized----”); Krebs v. supra, 255 Md. at 266- Cf. 67, 257 A.2d 428 (“Frequent change does not feeling contribute to that of security essential to the mental children”); Jordan, well being growing Jordan v. 50 Md. 437, 443, (1982) App. 26, denied, 439 A.2d cert. 293 Md. 332 (1986) (“ stability provided by ‘[T]he the continuation of a successful relationship parent with a who in day has been day contact with a generally far outweighs any alleged advantage which might accrue to the child aas result of a ” omitted]). custodial change.’ Rather, [Citation the court (1) said Ms. Hosain denied Mr. Malik access to (2) Mahak; Ms. Hosain was living sinful life cohabiting (3) paramour; with a Mahak would be living “unislamic society.” Those reasons do not applica constitute tion of the best interests of the child test. reason,

As for the first Ms. Hosain’s denial of Mr. Malik’s access to Mahak sounds like the father’s-right-to-control rule on which the other courts relied. reason, As the second the court was certainly entitled to consider that Ms. Hosain man,' lived with another him, and had a child with out of wedlock. But the court never established the correlation between that conduct and Mahak’s best interests. It is settled policy Maryland that the fact of adultery should be consid “only ered insofar as it affects the child’s welfare.” Davis v. Davis, 119, 127, (1977). 280 Md. Accord Swain Swain, 622, v. 43 Md.App. denied, 406 A.2d cert. (1979);

Md. 754 Draper v. Draper, 73, 79, 39 Md.App. (1978). A.2d 1095 Finally, the Pakistani court’s reference to living Mahak’s an “unislamic society” reminiscent Al-Fassi, facts of in which the Bahamian court had awarded custody to the father on the grounds of the risk of the children’s becoming Americans,” “little of “losing the cultural heritage Arabia,” of Saudi losing and of royal their inheri tance. 433 So.2d at 665-68.

Moreover, courts, sub- previous allegations like the considered, although were not abuse stance domestic opinion: court stated in its statement] in her by [appellant, further stated written

It is joints, in the habit smoking [of] is addict of [appellee] using tranquilizers, also addict of consuming' alcoh[o]l upon marriage. her after the fact transpired which was addiction, [appellee] the health of due above And to daily to mind is unable deal with his and his totally wrecked minor. therefore, welfare of the life, cannot look after the he regardless of whether charges, these Consideration of serious application a meaningful is essential to appears, accuser test. best interests Pakistani Certainly, any way I not intend criticize do culture, Moreover, mores, majority, or like the laws, customs. oldest I, too, recognize that Islam is “one world’s that, unless But we were clear Malik religions.” largest standard, comi- interests applied the Pakistani courts best of phrases courts’ use ty not The Pakistani appropriate. constitute the of the minor” does not such as the “welfare These interests the child standard. application of the best are, all, only labels. words after

III. this unfortu- bringing Ms. Hosain of majority accuses her through “improp- and her child upon situation herself nate “absconding” Mary- leaving Pakistan and er conduct” for the rule of It her actions a “brazen disdain land.5 terms law,” relationship her “adulterous” with and mentions her current husband. with unlawfully Hosain abscond from Pakistan

Ms. did majority acknowledged Mahak. in the Early opinion, not, condoning parents majority suggest, who 5. I am as the seems unlawfully bring disobey their children flagrantly court orders them, ground apply and then Maryland, "secrete” parent. absconding with the that the has bonded left appellant before, after, Pakistan and not appellee was Thus, awarded custody. when Ms. Hosain came to this coun- she try, any was not under legal compulsion to remain in Pakistan or to relinquish essence, of Mahak. she came as immigrant to our nation of immigrants. The majority’s assertion attempted to use the Mary- land court in “a conscious and apparently plan calculated circumvent the laws” of Pakistan is She, also unfounded. like others, many has resorted to our courts to defend her current living arrangement child, with her and to contest custody that, view, orders from another country in her are inconsistent with this State’s policy. She should not be chastised for contesting the Pakistani decrees the courts of the land lives, where she now merely because she and her child are Pakistani birth.

The majority also suggests that the adoption my views would sanction wholesale “uprooting” of children and would lead to the influx to Maryland of parents seeking custody of children who snatched, have been or trying to re-litigate issues that have been determined by custody decrees of other courts. I do certainly not want to be understood as encouraging such conduct. It is worth noting that the Maryland General As sembly and the United States Congress have legisla enacted tion to address See, these concerns.6 e.g., the UCCJA and the Parental Kidnapping Act, § Prevention 28 U.S.C. 1738A. But we should not sight lose of the fact that this case concerns only one child.

I respectfully dissent. According appellant, 6. Hague Aspects Convention on the Civil International Child Abduction is the international version of the UCCJA. parties agree signatory Pakistan is not a Hague Conven- Moreover, tion. appellee's claims expert conceded that Pakistan recognize does not awards issued other nations.

Case Details

Case Name: Hosain v. Malik

Court Name: Court of Special Appeals of Maryland

Date Published: Feb 21, 1996

Citation: 671 A.2d 988

Docket Number: 228, Sept. Term, 1995

Court Abbreviation: Md. Ct. Spec. App.