Custody decision overturned

Appeals court rejects polygraph testimony

January 23, 2001|By Johnathon E. Briggs | Johnathon E. Briggs,SUN STAFF

A custody battle that was played out in a seven-day trial, generated 1,400 pages of testimony and cost the combatants hundreds of thousands of dollars in legal fees was "reluctantly" returned to the Anne Arundel Circuit Court yesterday on an appeal ruling.

In an 11-page decision, the Maryland Court of Special Appeals said the Circuit Court's finding of abuse by the 39-year-old mother was flawed because of the use of testimony about the results of lie-detector tests administered to the child's father by a psychiatrist who had counseled the couple.

Although the father was said, in a synopsis of the case contained within the decision, to have passed 13 polygraph tests, no polygraph tests were administered to the mother - and regardless, the appellate judges said, polygraph testing is not admissible as evidence in Maryland courts.

The abuse was said in the synopsis to be the result of the rare and always-controversial Munchausen syndrome by proxy, in which a parent induces real or apparent symptoms of a disease in a child, resulting in unnecessary medical tests or surgical procedures.

The finding of abuse that brought the trial's award of custody to the father was based on the opinions of two doctors: the psychiatrist, and a pediatrician whose diagnosis was based on a review of the psychiatrist's evaluation.

During the December 1999 trial, the psychiatrist testified that he spent more than 100 hours evaluating the child-custody case over an eight-month period and recommended - based largely on the 13 polygraph tests - that the child, a boy now 5 years old, live with his father.

"Having found [the psychiatrist's] testimony fatally flawed, we reject [the pediatrician's] diagnosis," the appeals court said in reversing the lower court's award of custody to the father. It also overturned the Circuit Court's order that all of the child's visits with his mother be supervised.

The Sun is not naming the parents to protect the identity of the child.

"I'm sure [the mother] will be extremely gratified," her attorney, D. Christopher Ohly, said after learning of the ruling."[The father] is a man of substantial means and is well able to afford these proceedings if they continue," he said. "But it is our great hope that he will see his duties as a parent as more important than his ability to obtain a victory as a former spouse."

The mother, the father and his attorney could not be reached last night for comment.

According to the opinion, the couple married in December 1993, and the marriage began to deteriorate when the wife became pregnant and developed complications. "The husband did not respond enthusiastically to her pregnancy and he was away on business for much of the time," the appeals court noted in a synopsis of the case.

The marriage deteriorated further after the child was born, the court noted. In an altercation between the couple in February 1999, the husband returned from a business trip, and his wife took his briefcase into a bathroom; the husband forced open the door, the court noted, and both fell to the floor, resulting in bruises for the wife.

She called police, and the husband was taken away in handcuffs; the child had awakened to the noise and witnessed his father's arrest, the opinion said.

The next day, the wife obtained a protective order restricting the father's activities, and in a subsequent amendment, the parties agreed to counseling, which brought them to the psychiatrist whose testimony figured in the Circuit Court trial, the court noted.

The Court of Special Appeals said that it had no opinion as to which parent should be awarded custody, but hoped that the parties "can agree on a disposition that will best serve the child."

The alternative, the appellate judges noted, is a new trial.

"Regrettably," they said in returning the case to the Circuit Court, "the child's future remains in limbo."

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