delivered the opinion of the Court.
Appellant, Harry Shapiro, and appellee, Betty Sue Shapiro, were married February 14, 1969. They had one child, Lonnie, born January 26, 1971. The parties separated in April 1976 and executed a separation and marital settlement agreement. On April 21, 1977, appellant filed a bill of complaint for divorce a vinculo matrimonii, in the Circuit Court for Baltimore City, and the parties have been in constant and continuous litigation ever since, with a brief hiatus from June 20, 1978, when the divorce decree was passed, to December 4,1978, when appellant filed a petition to cite appellee’s attorney fоr contempt.
As part of a hearing on January 6 and 7, 1981, the chancellor, over the objection of appellant’s counsel, interviewed Lonnie in chambers with a court stenographer present but with the parties and their counsel excluded. Lonnie expressed great fear of his fathеr, stated that he hated his father and never wanted to see his father, and described an incident in which a dispute between his parents over visitation led to physical violence which he characterized as an assault upon his mother and an attempt by his father to take him away from his mother. Lonnie pleaded with the chancellor not to force him to see his father.
After interviewing Lonnie, the chancellor met with counsel in chambers and the court reporter read to counsel what was said during the interview with Lonnie. This was followed by an informal discussion which included the parties and which lеd to an agreement between them. Pursuant to that agreement, on January 22,1981, an order was entered in the case awarding custody of Lonnie to the appellee,
pendente lite;
directing that Lonnie undergo psychiatric evaluation by Dr. Robert B. Lehman, as agreed upon by the parties; directing that the рarties undergo appropriate psy
This appeal is from a subsequent order, entered on February 24, 1982, which, inter alia, awarded permanent custody of Lonnie to appellee; provided that appellant "shall have no right of visitаtion with Lonnie until such time as Dr. Robert B. Lehman recommends that such visitation shall commence, and such visitation shall be on the terms, guidelines and at such places as recommended by Dr. Robert B. Lehman”; required appellant to pay appellee $77.25 per week or $334.49 per month as child supрort; and awarded appellee a monetary judgment against appellant in the amount of $5,279.00, encompassing arrearages in child support, money due under the original separation and marital settlement agreement and the counsel fee previously ordered. Appellаnt contends that the chancellor erred:
(1) in ordering that appellant have no visitation until Dr. Lehman recommends it and then only upon the doctor’s terms and conditions;
(2) in conducting its interview with his son on January 7, 1981, outside the presence of appellant or his counsel;
(3) in entering a monetary judgment against him for $5,279.00 or for any amount;
(4) in awarding permanent custody of the child to the appellee; and
(5) in increasing child support.
Appellant’s second, third, fourth and fifth contentions are completely without merit.
In a custody case, it is proper for the chancellor, in his discretion, to interview the child out of the presеnce of the parties, with or without the consent of the parties and with or without the presence of counsel. In all cases, unless waived by the parties, the interview must be recorded by a court reporter and immediately following the interview its content shall be made known to counsel and the parties by means of the court reporter’s reading of the record to them.
Marshall v. Stefanides,
Appellant contends, and the record tends to support him, that the court reporter read the content of the interview only to counsel and not to the parties, although the record also reflects that almost immediately after the reading there was an "off record discussion in chambers with the parties.” However, appellant’s only objection below was to conducting the interview out of the presence of counsel, not to the failure of the reporter to read to him the сontent of the interview. Consequently, that issue is not before us. Md. Rule 1085.
Appellant’s complaint about the entering of a monetary judgment against him is based upon his contention that there was insufficient evidence to support it, i.e., that evidence as to the amount of arrearages was so confusing or conflicting as to be valueless. We find in the record no such confusion or conflict. On the contrary, we find direct and positive testimony as to arrearages in child support which, when added to other sums payable by appellant to appellee, clearly supported the еntry of judgment in the amount of $5,279.00.
Appellant’s complaint that the chancellor erred in increasing child support is predicated upon his contention that the record does not support the increase from $51.50 to $77.25 per week. We have examined the record, which includes evidence as to appellee’s income and needs for herself and the child as well as appellant’s income and assets, and find no clear error. Md. Rule 1086. Furthermore, the amount of child support awarded by the order of February 24,1982, is the same amount awarded by the prior order of January 22, 1981, which, according to the record, was based upon an agreement of the parties.
The visitation aspects of the order of February 24, 1982, however, give us concern. Appellant comрlains that the order denying him visitation until Dr. Lehman should recommend otherwise effectively denies him visitation permanently because of Dr. Lehman’s refusal to participate in any further evaluation, consultation or treatment until the balance of his fee was paid. It is tempting to dismiss this contention by pointing out that appellant who, jointly with his wife, had selected Dr. Lehman and who had agreed to pay his fees, could easily resolve this dilemma with a few strokes of his pen. That, however, would not cure what we perceive to be a fundamental defect in the order.
Dr. Lehman testified, in substance, that although even structured visits with his father were not in Lonnie’s best interest, such court-ordered visitation "would not cause a total collapse of the youngster.” Differentiating between "harm” and "best interest,” he recommended additional psychotherapy so that "the youngster would be more receрtive and the potential for the youngster to have a relationship with his father would be greater.”
Recognizing the importance of establishing, or reestablishing, a relationship between Lonnie and his father, the chancellor attempted to accomplish that through Dr. Lehman. Although Dr. Lehman had not seen Lonnie or the parties for several months because appellant had stopped paying his bills, it is apparent from the record that the chancellor anticipated a resumption of payment followed by a resumption of treatment. During the doctor’s testimony, the following colloquy occurred:
THE COURT: Let me ask this question: 'If he would resume paying and counseling started up again, could you give us any ballpark figure about how long it would take, or is that difficult to do?”
THE COURT: For the father to have visitation with the son, each (sic) on a limited basis.
It is also apparent from his comments to the parties and counsel that the chancellor did not intend to terminate appellant’s visitation rights but to suspend them temporarily until the relationship between Lonnie and appellant improved:
"Now, I think every father ought to have the right to visit his child. I have never denied any father the right of visitation оn any kind of permanent basis. I didn’t do so in this case. I think Mr. Shapiro should have a relationship with his son, and I think it can be brought about. However, it ought to be brought about by the intervention of a behavioral scientist like Dr. Lehman, who is trained in human behavior, who can prepare this child for visitation, and of course, I would hope — point out to both parties — some of the errors they are making in this child’s development, and therefore I am going to grant visitation to Mr. Shapiro, conditioned, however, on the recommendation of Dr. Lehman, who will notify Mr. Shapiro and Lonnie when this visitation can be brought about. Hopefully, it will start out on a minimal basis and, of course, be extended.
I would hope, and I say to Mr. Shapiro, I hope that he would continue with Dr. Lehman and try to resolve this conflict between him and his son, and bring about some visitation.”
The first difficulty with the visitation provisions of the February 24, 1982, order is that a denial of visitation "until such time аs Dr. Robert B. Lehman recommends that such visitation shall commence” is, in effect, a total suspension of visitation rights — a denial of all access for an indefinite period.
An indefinite suspension of visitation was reversed in
Kemp v. Kemp,
Although Lonnie’s negative feelings about his father — anger, hatred and fear — and the reasons for those feelings, particularly those related to the incident he characterized as an assault upon his mother, make this a somewhat stronger case then Kemp, the circumstances here do not present such an exceptional case as would justify an indefinite denial of all access by the father.
The secоnd difficulty with the visitation provisions of the February 24, 1982, order is that a denial of visitation until such visitation is recommended by the child’s physician and then only upon such terms, guidelines and at such places as the physician may recommend constitutes an improper delegation of judicial responsibility to the рhysician. See
In re Marriage of Matthews,
Jurisdiction over custody and visitation, as well as guardianship, legitimation, maintenance and support of children, is vested in the equity courts. Md. Cts. & Jud. Proc. Code Ann. § 3-602(a). There is no authority for the delegаtion of any portion of such jurisdiction to someone outside the court.
It is entirely permissible for the chancellor to base his award of custody or his determination as to visitation on the opinions of experts, but the ultimate decision must be that of the chancellor, not the expert.
Accordingly, we will affirm the order of February 24, 1982, in all respects except for the provisions as to visitation. As to those provisions, we will reverse and remand.
Order affirmed in part and reversed in part and remanded for further proceedings in accordance with this opinion.
Costs to be paid by appellant.
Notes
. We note that the appellee and Lonnie had obtained counseling from the Jewish Family and Children’s Service. The court may wish to consider the possibility of further application to that agency for additional counseling or, perhaps, supervision of visitation.