Man wins custody of girl from mother

February 05, 1994|By Sheridan Lyons | Sheridan Lyons,Sun Staff Writer

A 54-year-old Baltimore County man has won permanent custody of his young daughter -- despite proof that he is not her biological father -- in a bizarre legal battle that at one point reached Maryland's highest court.

After an emotionally charged two-week trial, Baltimore County Circuit Judge John F. Fader II ruled Thursday evening in favor of the man, who married the mother three years after the girl was born and has reared her for the past 3 1/2 years.

The judge stopped short of permitting him to adopt the girl and allowed in evidence a blood test that made him a legal outsider in the case.

The mother, who originally convinced the husband that he was )) the father -- then offered a blood test to disprove it in court -- lost her fight to keep her child. But attorneys said unusual circumstances in the case are unlikely to make it a precedent.

The 49-year-old mother wept, and the father was beaming and teary-eyed at the decision, but neither would comment.

Judith A. Wolfer, the mother's attorney, said she didn't know whether she would appeal the ruling.

The Sun will not use the parties' names to protect the girl's identity.

The case reached Maryland's Court of Appeals, which ruled last March that judges must consider the best interest of the child before ordering a blood test in a custody case that might eliminate a father the child knows without establishing true paternity.

But since all the parties knew the results of the test, the high court said, "The cat is now out of the bag and cannot now be stuffed back in."

Judge Fader's decision to put the blood test in evidence made the girl's father a third party and set up a legal presumption in favor of the mother.

With no clear argument against the natural parent -- such as unfitness or abandonment -- the man's only legal claim on the child was "exceptional circumstances."

That was good enough. The "circumstance" Judge Fader found involved the mother's fiance, with whom she has lived since 1990 in another state.

The fiance did not testify, but his grown daughter told the court that he had raped her repeatedly from the time she was 3 until she was 14.

Under those circumstances, Judge Fader said, if he awarded custody to the mother, "I believe I would be putting that child in harm's way, in great harm's way . . . to the strong possibility of sexual abuse, and I will not do that."

He said the mother could see her daughter as often as she liked and even have her visit in her new home -- if the boyfriend is away.

"You two have raised a marvelous child," the judge told the parents. But he blasted them for the way they had treated each other -- hurling charges of sexual abuse, kidnapping, beatings, pornography and other unsubstantiated allegations at each other with abandon.

"The only one in the family who has any sense is an 8-year-old girl, who loves both of you very much," said the judge, who questioned the girl privately last week.

He said the adults displayed "selfishness uncommon even to these troubled domestic cases."

He also noted that the father suffers from manic depression that is not fully controlled by medication.

The couple's ill-starred relationship began while he was separated from his third wife. The woman became pregnant in 1985, and although his chronic low-sperm count made him suspicious -- to the point of making her take a voice-stress analysis -- he accepted her assertion that the child was his.

They married in 1988.

During their difficult days together -- including separations and reconciliations -- the woman first told the man that he wasn't the father, and he brought up the issue of a blood test, according to testimony.

After a stormy year as man and wife, they separated for good. She and the child lived in the family home, and he moved out.

The mother testified at the trial that she had suddenly remembered through "flashbacks" in therapy that she had been date-raped one night when she went out drinking.

In June 1990, the mother left for another state with her daughter, although she had signed a separation agreement saying she would not move out of state with the girl. She claimed she was only preparing to move -- in anticipation of winning permanent custody -- and intended to return to Maryland within a week.

But while she was gone, the father went to court and won temporary custody of the girl, arguing that the mother had broken the agreement.

In the legal battle that followed, the mother sought and won the blood test that showed the man was not the girl's father. She thus regained legal custody -- but never got her daughter back because the order was stayed until the case could be tried.

If she had known 3 1/2 years ago that her trip would cost her her daughter, she said through tears, "I never would have left. It's made a terrible mess."

In her closing argument, the man's lawyer, Ann Turnbull, read a message from him to his daughter into the record, in case the girl ever reads the transcript: "I want you to know I love you as if it were proven you were my biological child. . . . It has never made a difference to me."

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