Hanke v. Hanke
1992 Md. App. LEXIS 206, 615 A.2d 1205, 94 Md. App. 65 (1992)
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Rule of Law:
In child visitation matters, the ultimate test is the best interests of the child, which requires a court to prioritize the child's safety above all other considerations, especially when there is credible evidence of past sexual abuse by a parent.
Facts:
- In 1986, Dan Wolf Hanke sexually abused his 11-year-old stepchild.
- Mary Elizabeth Hanke learned of the abuse while she was pregnant with their daughter and immediately separated from Mr. Hanke.
- Mr. Hanke later admitted to the abuse, attributing it to being drunk and calling it "using bad judgment."
- Following their divorce, the court ordered unsupervised four-hour visits between Mr. Hanke and their four-year-old daughter.
- After one of these visits, the child reported that Mr. Hanke was "touching her where he was not supposed to."
- A subsequent medical examination of the child revealed an "Abnormal Genital Exam consistent with but not conclusive for fondling of external genitalia" and a "Possible healed genital sexual injury."
- A court-ordered psychological evaluation concluded that Mr. Hanke had a "paraphiliac coercive disorder," remained a risk to his daughter, and should not be alone with her.
Procedural Posture:
- Criminal charges were brought against Dan Wolf Hanke for sexually molesting his stepchild, resulting in a plea bargain for a suspended sentence which included a provision for supervised visitation with his biological child.
- On August 1, 1990, the Circuit Court for Harford County granted a divorce to the Hankes, giving custody of their child to Ms. Hanke and reserving the issue of visitation.
- On March 18, 1991, the circuit court ordered Mr. Hanke to have unsupervised four-hour visitations with the child.
- On May 30, 1991, the Department of Social Services (DSS) filed a Child in Need of Assistance (CINA) petition based on new allegations of abuse and recommended supervised visitation.
- The CINA petition and the visitation matter were consolidated for hearings in June 1991.
- On August 16, 1991, the circuit court granted Mr. Hanke overnight visitation with the child.
- Mary Elizabeth Hanke (appellant) appealed the circuit court's order granting overnight visitation.
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Issue:
Does a trial court abuse its discretion by ordering overnight visitation for a parent with a documented history of sexually abusing another child, when there is substantial evidence that the parent remains a risk to the child in question?
Opinions:
Majority - Bell, J.
Yes. A trial court's order granting overnight visitation constitutes an abuse of discretion when it fails to prioritize the child's safety in the face of substantial evidence that the parent poses a risk. The court's primary responsibility is to protect the minor child, not to punish a non-compliant custodial parent. In this case, the trial judge's decision was clearly wrong given Mr. Hanke's admitted past sexual abuse of a stepchild, the new evidence suggesting abuse of his biological child, and expert testimony confirming he remained a risk. The court emphasized that past behavior is the best predictor of future behavior, and a parent's justifiable fear for their child's safety in such circumstances cannot be ignored or overridden as a punitive measure.
Analysis:
This case strongly reaffirms that the "best interests of the child" standard is paramount in custody and visitation disputes, with child safety being the primary component. It serves as a significant check on trial court discretion, establishing that ignoring credible evidence of sexual abuse and ongoing risk in favor of granting visitation is a reversible error. The decision signals to lower courts that they cannot use visitation orders to punish a parent for perceived non-compliance, such as moving out of state, when legitimate safety concerns for the child exist. This precedent strengthens the position of custodial parents seeking to protect their children from a parent with a history of abuse.
