Volodarsky v Tarachanskaya (Ct. of Appeals)

Filed February 9, 2007--Opinion by Judge Alan M. Wilner.

Family Law Article §9-101 provides as follows:

(a) In any custody or visitation proceeding, if the court has reasonable grounds to believe that a child has been abused or neglected by a party to the proceeding, the court shall determine whether abuse or neglect is likely to occur if custody or visitation rights are granted to the party.

(b) Unless the court specifically finds that there is no likelihood of further child abuse or neglect by the party, the court shall deny custody or visitation rights to that party, except that the court may approve a supervised visitation arrangement that assures the safety and the physiological, psychological, and emotional well-being of the child.

Issue: Where the trial court has reasonable grounds to believe that a child has been abused, is the trial court required to make a factual finding of abuse and if so, must the factual finding be supported by a preponderance of the evidence?

Held: Yes. In reversing the decision of the Court of Special Appeals (and thereby affirming the trial court), the Court of Appeals held that, if a court if a trial court finds that there are reasonable grounds to believe that a child has been abused there must be further fact finding by the trial court on the substantive issue of abuse by a preponderance of evidence. The Court of Appeals specifically rejected claims that §9-101 created a less stringent standard of proof.

Full opinion available in PDF.