Hosain v. Malik

HOLLANDER, Judge,

dissenting.

I respectfully dissent, and I do so for several reasons. In my view, the issue regarding counsel has been preserved. Additionally, I believe that the trial court and the majority have erred in characterizing as “not relevant” the child’s views with respect to the critical issues that the judge had to resolve. Therefore, I conclude that the circuit court erred in proceeding when the child’s court-appointed counsel failed to appear. Furthermore, my reading of the Pakistani court orders convinces me that the Pakistani courts did not apply the “best interests of the child” standard. As a result, the orders are not entitled to comity. Accordingly, I would reverse.

I.

The circuit court properly appointed an attorney to represent and protect the interests of twelve year old Mahak Malik, who is at the center of the controversy. Consistent with this Court’s directive in Malik, evidence was presented on remand regarding Pakistani child custody law and its application in this case.

Inexplicably, Mahak’s attorney failed to note on her calendar the date of the hearing and did not appear either at the trial or at the closing arguments that were held on another *333 day. Nonetheless, the trial judge elected to proceed without the child’s attorney. The majority holds that the issue of whether the trial judge erred in doing so is not preserved for our review, because appellant did not make a timely objection. Even if the issue were preserved, the majority concludes that the trial judge did not err, because “the interests of the parties’ child were not the focus of the remand hearing.” I disagree.

A.

In concluding that the counsel issue is not preserved, the majority has misconstrued Md.Rule 8-131(a). It provides that, ordinarily, we will not review a non-jurisdictional issue “unless it plainly appears by the record to have been raised in or decided by the trial court.... ” (Boldface added). The use of the word “or” plainly indicates that the rule’s requirement is disjunctive, not conjunctive. Therefore, an issue is preserved for our review if it was either raised by a party or decided by the court. 1

This interpretation of the rule is consistent with its purpose. The rule is intended “ ‘to ensure fairness for all parties in a case and to promote the orderly administration of the law.’ ” Brice v. State, 254 Md. 655, 661 , 255 A.2d 28 (1969), quoting Banks v. State, 203 Md. 488, 495 , 102 A.2d 267 (1954). By requiring counsel to object, see State v. Bell, 334 Md. 178, 189 , 638 A.2d 107 (1994), the judge is on notice of an alleged error, and then has an opportunity to correct it. See Clayman v. *334 Prince George’s County, 266 Md. 409, 416 , 292 A.2d 689 (1972); Robinson v. State, 66 Md.App. 246, 254-55 , 503 A.2d 725 (1986). What is critical, then, is the judge’s opportunity to consider an issue.

Lawyers do not commit error. Witnesses do not commit error. Jurors do not commit error. The Fates do not commit error. Only the judge can commit error, either by failing to rule or by ruling erroneously when called upon, by counsel or occasionally by circumstances, to make a ruling.

DeLuca v. State, 78 Md.App. 395, 397-98 , 553 A.2d 730 (1989) (emphasis supplied).

In this case, the court was called upon to rule by the circumstances presented. Clearly, the counsel issue was decided by the circuit court. The record reflects that, at the beginning of the hearing, the judge noted that Mahak’s counsel was not present. Nevertheless, he expressly decided to proceed. Thus, under the plain language of Rule 8-131(a), the issue is preserved for our review.

The case of John O. v. Jane O., 90 Md.App. 406 , 601 A.2d 149 (1992), on which the majority relies to support its position of non-preservation, is inapposite. There, counsel for the child appeared at the hearing and asked to be excused. All of the parties then affirmatively consented to the absence. Moreover, although the Court said that the father had not “raise[d]” the issue in the circuit court, the Court did not discuss whether the issue had been “decided.”

Permeating much of the majority’s analysis is the claim that appellant did not timely object. While there are provisions of the Maryland rules requiring a party to object as soon as the grounds become apparent, these rules, by their terms, apply to objections to the admission of evidence. 2 In contrast, Rule *335 2-517(c), which governs “objections to other rulings or orders,” states:

For purposes of review by the trial court or on appeal of any other ruling or order, it is sufficient that a party, at the time the ruling or order is made or sought, makes known to the court the action that the party desires the court to take or the objection to the action of the court.

(Emphasis supplied).

The plain language of Rule 2-517(c) suggests that a timely objection is “sufficient.” But a “sufficient” condition is different from a “necessary” condition. The difference in phraseology between Rule 2-517(c) and Rule 2-517(a) indicates that the choice of words was no accident. If the drafters wished to require timely objections to rulings other than ones concerning the admission of evidence, they obviously knew how to do so.

I am also troubled by the majority’s apparent view that a minor child’s rights in a custody case may be readily forfeited through the inaction of a parent. In this child custody maelstrom, the child’s rights should not depend on whether a parent made a timely objection. Even in the context of child support cases, parents cannot bargain away their children’s rights. Stambaugh v. Child Support Enforcement Administration, 323 Md. 106, 111 , 591 A.2d 501 (1991); Shrivastava v. Mates, 93 Md.App. 320, 327 , 612 A.2d 313 (1992); Lieberman v. Lieberman, 81 Md.App. 575, 588 , 568 A.2d 1157 (1990). By analogy, Mahak’s right to an attorney at the very hearing that would determine her future should not be washed away merely because her mother did not timely complain. That result ignores the principle that, notwithstanding any failure to object, the “parens patriae power of the equity courts is plenary to afford minors whatever relief may be necessary to *336 protect their best interests.” Wagner v. Wagner, 109 Md.App. 1, 20 , 674 A.2d 1 (1996).

The reasoning of the Court of Appeals in In re Adoption/Guardianship No. A91-71A, 334 Md. 538, 557 , 640 A.2d 1085 (1994), and Washington County Dept. of Social Services v. Clark, 296 Md. 190, 199-200 , 461 A.2d 1077 (1983), is persuasive. The Court determined that no objection was necessary to preserve the issue of a court’s failure to appoint independent counsel for the child, because the appointment of counsel was statutorily mandated. The Court also noted that the minor child was unable to object. Certainly, these cases are distinguishable, because they involved an adoption and a guardianship, and the trial courts failed altogether to appoint counsel. But to one in Mahak’s position, this is a distinction without a difference. The effect of the circuit court’s decision is that Mahak’s voice was silenced.

B.

I also disagree with the majority’s conclusion that, even if the issue were preserved, the circuit court did not abuse its discretion in proceeding without her attorney. At the conclusion of the evidentiary hearing, the trial judge stated, inter alia, that the child’s position was “not relevant,” because the hearing concerned only the two issues specified in our mandate in Malik. Consequently, the trial court concluded that it was “not at a point where the child’s position is to be taken into consideration.” In adopting this view, the majority states that the “interests of the parties’ child were not the focus of the remand hearing,” that “the remand hearing was not for the purpose of determining the ultimate issue of the child’s best interests,” that “the matters for which the presence of the child’s counsel would be necessary were not yet at issue ...,” and that the remand hearing was only an “early stage” of the proceedings.

The majority misconstrues the vital role of Mahak’s counsel at the evidentiary hearing and overlooks the child’s fundamental right to participate, as a party; that right, in Mahak’s case, *337 could only be exercised through counsel. Moreover, the issues set forth in our mandate in Malik were the dispositive issues in the case. Indeed, the outcome would determine Mahak’s fate—whether she would remain in the United States with her mother, with whom she has resided here since 1990, or whether she would be returned, against her wishes, to Pakistan and to a father she apparently feared. Consequently, the hearing was not merely an “early stage” of the proceedings; the trial court’s ultimate resolution of the comity issue would necessarily turn on what occurred at that hearing and, if its ruling is upheld, it will be the only hearing of significance. In this light, Mahak’s position was exactly what was relevant, and it is a travesty to conclude otherwise.

The relevance of the child’s position and the fundamental importance of counsel’s role are underscored by the function of the child’s counsel in an acrimonious custody dispute. Md.Code Ann., Fam.Law (“F.L.”) § 1-202 (1991), authorizes the circuit court to appoint counsel for a child to provide the court with an “independent analysis” of the child’s position. John O. v. Jane O., supra, 90 Md.App. at 436 , 601 A.2d 149 . Indeed, “[t]he purpose of § 1-202 is to afford the court an opportunity to hear from someone who will speak on behalf of the child.” Id., 90 Md.App. at 435-36 , 601 A.2d 149 (citation and internal quotation marks omitted). The statute thus recognizes that the interests and positions of the parents in these cases are not necessarily congruent with those of the children, and that the child is entitled to an advocate who will champion the child’s position.

The case of Levitt v. Levitt, 79 Md.App. 394 , 556 A.2d 1162 , cert. denied, 316 Md. 549 , 560 A.2d 1118 (1989), is noteworthy. There, we held that a trial court was required to appoint counsel for a child in a custody modification proceeding, although no party had apparently ever moved for the appointment of counsel. Id., 79 Md.App. at 403-04 , 556 A.2d 1162 . In much the same way, without the presence of her counsel, Mahak was not heard. While Mahak and her counsel wanted the court to deny comity, Mahak’s counsel was unable to attempt to elicit any evidence to demonstrate that the Pakista *338 ni courts had not applied the best interests test. Through the questioning of witnesses, the introduction of evidence, and argument, her counsel might have been able to persuade the court to adopt the child’s position that the Pakistani court decisions were not entitled to comity.

Numerous cases in other jurisdictions have recognized the importance of actual participation by the child’s counsel in custody battles. The Montana Supreme Court’s decision in In re Marriage of Kramer, 177 Mont. 61 , 580 P.2d 439 (1978), for example, is instructive. That court held that the judge erred in deciding a custody issue in a divorce proceeding when appointed counsel for the children did not participate in any of the hearings. What the court said, 580 P.2d at 445 , is pertinent here:

The purpose of the statute [authorizing trial courts to appoint independent counsel for children] is to provide the children with an advocate who will represent their interests and not the parents’ interest. This means that the attorney is not to take a passive role in the hearing on custody. He should represent the children actively and present to the court all the evidence he can marshal concerning the best interests of the children.

See also, J.A.R. v. Superior Court, 179 Ariz. 267 , 877 P.2d 1323, 1331 (Ct.App.1994); G.S. v. T.S., 23 Conn.App. 509 , 582 A.2d 467 (1990) (court commits plain error if it fails to appoint independent counsel for children involved in custody dispute that involved allegations of sexual abuse); In re Marriage of Barnthouse, 765 P.2d 610 (Colo.Ct.App.1988), cert. denied sub nom.. Barnthouse v. Barnthouse, 490 U.S. 1021 , 109 S.Ct. 1747 , 104 L.Ed.2d 184 (1989) (child’s attorney should take an active role in presenting evidence); Veazey v. Veazey, 560 P.2d 382, 390-91 (Alaska 1977).

Without question, Mahak’s attorney did not fulfill her responsibility when she failed to participate at the hearing or at closing arguments. While the dereliction was undoubtedly accidental and unintentional, Mahak should not be forced to bear the burden of the error. We should be mindful of what *339 the District of Columbia Court of Appeals said in Jones v. Roundtree, 225 A.2d 877, 878 (D.C.1967), albeit in a different context: “We are hesitant ... to visit the sins of an attorney on his client, especially when that client is a minor.”

C.

In determining that the circuit court did not err in proceeding without Mahak’s counsel, the majority states that “[t]he child’s attorney could not have offered anything meaningful in addition to what appellant’s counsel already presented.” In support of its conclusion, the majority relies on the assertion of child’s counsel that she would not have presented anything helpful even if she had been at the evidentiary hearing. My concern is obvious; however innocent counsel’s mistake was in failing to appear, the child’s attorney has a substantial self-interest in minimizing the resulting harm to her client. Indeed, in spite of her client’s position and her own position opposing comity, she appeared at the appellate argument as an appellee and submitted an appellee’s brief. An acknowledgement by her that her presence would have made a difference in the outcome would be tantamount to an admission of malpractice.

In my view, Mahak was tangibly prejudiced by her counsel’s failure to participate. 3 Included in appellant’s appendix were reports from Dr. Leon Rosenberg, who examined Mahak *340 during the pendency of the circuit court proceedings. His reports purport to show that Mahak was extremely fearful of her father. The majority says that the reports are irrelevant and “extraneous,” because the circuit court was not conducting a best interests hearing; it agrees with appellee that, since the reports were not admitted below, they cannot be considered here. That is precisely the point. Because child’s counsel was not present, she could not attempt to introduce the reports. Had the reports been introduced, Mahak’s counsel could have relied on them to show important deficiencies in the Pakistani proceedings and to highlight what was not done or considered there. Thus, the reports would have advanced the child’s claim that, by failing to consider or address Mahak’s fear of her father, the Pakistani courts did not apply the best interests standard.

The .only way to show prejudice is to demonstrate what Mahak’s counsel could have done had she participated at the hearing. The majority’s reasoning is thus circular—it declares that there is no evidence of prejudice from counsel’s failure to appear, and simultaneously it strips appellant of the ability to establish such prejudice. This circuitous approach means that a court’s decision to proceed without counsel may never be reversible error, because practically the only way to establish prejudice is to go beyond the record and show what counsel could have introduced if he or she had participated in the hearing. In this regard, I find compelling the Court’s comment in Town of Somerset v. Montgomery County Board of Appeals, 245 Md. 52 , 225 A.2d 294 (1966). In considering whether actual prejudice must be shown to establish a denial of procedural due process, the Court said, “It would be a mockery of justice to hold that a person cannot complain of the denial of the right to cross-examine unless he can show what the result of the cross-examination would have been; that result is often as unexpected as it is revealing.” Id., 245 Md. at 66 , 225 A.2d 294 . Cf. Wagner v. Wagner, supra, 109 Md.App. at 24 , 674 A.2d 1 (“there is no requirement that actual prejudice be shown before denial of due process can be ■ established”).

*341 In a footnote, the majority also asserts that a remand would accomplish nothing except “to allow appellant a second bite at the apple.” Mahak is not a casual bystander in these proceedings. “We are not here dealing with chattels.” Krebs v. Krebs, 255 Md. 264, 266 , 257 A.2d 428 (1969). She is a young girl who will be profoundly affected by the outcome of these proceedings. Whether a remand gives the mother a second bite at the apple is not the point; a remand would give Mahak her only real bite. Fundamental fairness requires no less.

In sum, I cannot accept the majority’s view that the child’s position was not compromised. Without counsel, Mahak’s position was neither articulated nor considered with respect to the critical and complex issues that were determinative of her future. The fact that Mahak was unable to have her interests represented in a proceeding, the outcome of which will have a colossal impact on her life, is, in my view, “prejudice” enough.

II.

I disagree with the majority’s conclusion that the Pakistani court orders show that the courts there applied the best interests standard. The majority admonishes that, in analyzing the issue, it is important “to keep [our] eye on the ball.” I respectfully submit, however, that, in its ultimate analysis of the Pakistani court orders, the majority strikes out.

A.

As a threshold matter, I note that there is some confusion in the record as to whether the circuit court actually found that the Pakistani courts had applied the best interests of the child standard. In his oral ruling at the conclusion of the hearing, the trial judge stated: “The court is persuaded that, while the courts of Pakistan did not apparently apply the best interest of the child standard to their decision, it is only because the mother and the child were not present in person to substantiate the mother’s allegations.” (Emphasis supplied). He later stated: “I am persuaded that, if the child and the mother had been present, the law of Pakistan requires their courts to give *342 paramount consideration to the best interests of the child.” (Emphasis supplied). These statements indicate that the circuit court actually found that the Pakistani courts had not applied the best interests of the child standard. This view is supported by the fact that, when counsel asked the court whether the proposed order to be submitted by counsel should contain the court’s findings, the judge replied: “I don’t think the findings need to be expressed in the order. The findings are on the record.”

Nevertheless, in its subsequent written order, the court stated that appellant had “failed to prove [that] the Pakistani court did not apply the ‘best interest of the child’ standard.” Thus, there are flatly contradictory findings on the record. It is not dispositive that the finding favorable to appellee is in a written order executed subsequent to the court’s oral rulings. As the Court of Appeals stated in Davis v. Davis, 335 Md. 699, 713 , 646 A.2d 365 (1994), “the subsequent issuance of a formal written order does not preclude a finding that judgment was actually orally rendered on an earlier date.”

The problem of the contradictory findings is not merely of academic concern; it is crucial with respect to the appropriate standard of review. We must determine whether the circuit court’s factual conclusions are clearly erroneous. Our decision hinges on which decision is subjected to that test. To say that the circuit court’s finding that the Pakistani courts applied the best interests of the child test is not clearly erroneous is completely different from saying that its finding that the Pakistani courts did not apply the best interests of the child test is clearly erroneous.

It is also significant that the trial court orally suggested that the Pakistani courts did not apply the best interests of the child standard, albeit because appellant and Mahak did not appear in Pakistan. While the trial court may have meant to blame appellant for the Pakistani court’s action, it is the underlying finding that is critical. We expressly said in Malik that the Pakistani decisions are not entitled to comity if the Pakistani courts did not apply the best interests of the child *343 standard. Malik, 99 Md.App. at 533-584, 638 A.2d 1184 . We did not say that, if the Pakistani courts failed to apply the proper standard because the mother did not appear, comity is warranted.

The majority minimizes this concern when it calls the court’s initial finding “a single comment regarding the lack of evidence before the Pakistani court from which it could apply the best interests standard.” But the circuit court did not simply refer to a “lack of evidence.” To the contrary, it initially found that the Pakistani courts had not applied the best interests standard. Further, that “single comment” happens to be a finding on the paramount issue of this case.

As it is unclear what the circuit court found, we should not be forced to speculate, particularly when the future of a child is at stake. If we cannot clearly determine what the trial judge meant, at a minimum, a remand for clarification is required.

B.

Malik makes clear that a cardinal question is whether the Pakistani courts applied the best interests of the child standard. The Pakistani opinions certainly contain phraseology that sounds like a best interests standard. But careful review of the Pakistani orders makes clear that the Pakistani courts did not apply the best interests standard within the meaning of Maryland law.

In Queen v. Queen, 308 Md. 574 , 521 A.2d 320 (1987), the Court defined the best interests standard:

“For the purpose of ascertaining what is likely to be in the best interests and welfare of a child a court may properly consider, among other things, the fitness of the persons seeking custody, the adaptability of the prospective custodian to the task, the age, sex and health of the child, the physical, spiritual and moral well-being of the child, the environment and surroundings in which the child will be reared, the influences likely to be exerted on the child, and, if he or she is old enough to make a rational choice, the *344 preference of the child. 2 Nelson, Divorce and Annulment, § 15.01 (2nd ed., 1945). It stands to reason that the fitness of a person to have custody is of vital importance. The paramount consideration, however, is the general overall well-being of the child.”

Id., 308 Md. at 587-88 , 521 A.2d 320 , quoting Hild v. Hild, 221 Md. 349, 357 , 157 A.2d 442 (1960).

In addition to the factors enumerated in Queen , we added in Best v. Best, 93 Md.App. 644, 655 , 613 A.2d 1043 (1992), that the trial court should also consider “length of separation from the natural parents,” “potentiality of maintaining natural family relations,” “material opportunities affecting the future of the child,” and “prior voluntary abandonment or surrender.” Best, 93 Md.App. at 656-657 , 613 A.2d 1043 . See also Montgomery County Department of Social Services v. Sanders, 38 Md.App. 406, 419-21 , 381 A.2d 1154 (1978). I am unable to find any contemporary authority suggesting that the best interest standard compels a custody award adverse to a parent who, without violating a court order, nevertheless leaves or flees the home jurisdiction with the child who is the focus of the custody battle.

Numerous cases in Maryland emphasize the overriding importance of the best interest standard. Indeed, we recently reiterated that the best interest standard is “the dispositive factor on which to base custody awards.” Wagner v. Wagner, supra, 109 Md.App. at 38 , 674 A.2d 1 (emphasis in original). Moreover, in Taylor v. Taylor, 306 Md. 290, 303 , 508 A.2d 964 (1986), the Court said that the best interest of the child is “the objective to which virtually all other factors speak.” See also Robinson v. Robinson, 328 Md. 507, 519 , 615 A.2d 1190 (1992) (the best interest standard is the “primary concern”); McCready v. McCready, 323 Md. 476, 481 , 593 A.2d 1128 (1991) (best interest test is the “appropriate standard” to determine custody); Ross v. Hoffman, 280 Md. 172, 175, 178 , 372 A.2d 582 (1977) (“the best interest standard controls” custody dispute and is “always determinative”); Fanning v. Warfield, 252 Md. 18, 24 , 248 A.2d 890 (1969) (best interest standard is the “ultimate test”); Dietrich v. Anderson, 185 *345 Md. 103, 116, 43 A.2d 186 (1945) (the best interest standard is “of transcendent importance”); Shunk v. Walker, 87 Md.App. 389, 396 , 589 A.2d 1303 (1991) (“The guiding principle of any child custody decision, whether it be an original award of custody or a modification thereof, is the protection of the welfare and best interests of the child”); Kramer v. Kramer, 26 Md.App. 620, 623 , 339 A.2d 328 (1975). Bearing in mind the undisputed importance of the best interest standard, I turn to a review of the Pakistani orders in issue.

In the opinion of the Court of Vth Senior Civil Judge at Karachi East, issued October 23, 1991, the judge awarded custody to Mr. Malik because appellant removed the child from the “constructive custody” of her father and “the father cannot exercise his control” over the child. The court then cited a previous case for the proposition that “by removing the minor to U.S.A. the defendant has deprived the minor child of an opportunity to meet her father, which means that she has done something [injurious] to the mental and [e]motional well-being of the minor, and thereby has lost the right of Hizanat.” Those were the only reasons that the court gave in support of its conclusion.

Noticeably absent is any discussion or findings as to the fitness of either parent. Nor is there any consideration of the well-being of the child or the standard of living or surroundings in which Mahak would be reared. Further, the court did not attempt to ascertain the desires of Mahak, who was then eight years old, either through appointment of an attorney for her or through counsel for the parties. This is in spite of the fact that § 17(3) of the Pakistani Guardians and Wards Act (“the Act”) allows the court to consider the preference of the minor “if the minor is old enough to form an intelligent preference.”

It is also significant that there was no effort by the Pakistani court to appoint an attorney for Mahak. Considering the importance of independent counsel for children in contested *346 custody disputes, supra at 290-293, this failure offends the procedure of Maryland courts.

In its recitation of facts, the Pakistani court noted appellant’s allegations that her former husband “is ad[d]icted of Alcohol and tranquilizers and the said habits made him unable to deal with daily life and discharge his obligation to look after the welfare of [appellant] and the minor” and that Mr. Malik

used to extend threats of dire consequences to the [appellant] and also used to threat[en] to snatch away the minor from the [appellant]. Due to said threats the minor started awakening at night time and used to utter words ‘Bachao Bachao.’ In order to save the minor from unpleasant atmosphere and in the welfare of the minor the [appellant] left Karachi for U.S.A. along with the minor....

Yet the court failed to investigate, consider, or resolve the mother’s serious allegations of appellee’s substance and domestic abuse. As the majority concedes, Justice Dogar, appellee’s expert witness, “opined that the Pakistani court did not consider appellant’s allegations,” because she failed to appear.

Although appellant did not personally appear in Pakistan to present the allegations of abuse, 4 it is extremely unlikely that a Maryland judge would simply award custody of a child to a parent accused of abuse or misconduct, merely because the other parent fails to appear. Rather, the judge would attempt to ascertain the validity of the claims, in order to safeguard the well-being of the child. See John F. Fader II & Richard J. Gilbert, Maryland Family Law § 5-8 (2nd ed. 1995).

*347 To be sure, an investigation is not statutorily required. See Powers v. Hadden, 30 Md.App. 577, 587 , 353 A.2d 641 (1976). There are, however, circumstances when our courts have recognized that an investigation is warranted, to enable the court to fulfill the mission of doing what is best for the child. See Ouellette v. Ouellette, 246 Md. 604, 608 , 229 A.2d 129 (1967) (“we think that the determination of the [custody issue], due to the ages of the children, should have been deferred until after a qualified agency had made an investigation for the chancellor....”); Jester v. Jester, 246 Md. 162, 171 , 228 A.2d 829 (1967). See also Shanbarker v. Dalton, 251 Md. 252, 259 , 247 A.2d 278 (1968). In the face of appellant’s allegations, which were known to the courts, the Pakistani court should have sought to assure the child’s safety. See Ross v. Hoffman, supra, 280 Md. at 176 , 372 A.2d 582 , citing Dietrich v. Anderson, supra, 185 Md. at 118 , 43 A.2d 186 (“a court of chancery stands as a guardian of all children and may interfere ... in any way to protect and advance their welfare and interests”). Appellee’s denial of the accusations is not a substitute for an independent investigation.

In my view, the Pakistani court order fits squarely within the analysis of Al-Fassi v. Al-Fassi, 433 So.2d 664 (Fla.Dist.Ct.App.1983), which we discussed favorably in our opinion in Malik, 99 Md.App. at 534 , 638 A.2d 1184 . There, Florida’s intermediate appellate court declined to grant comity to a Bahamian court order that awarded custody to a father to avoid the risk of the children’s becoming “little Americans,” of “losing the cultural heritage of Saudi Arabia,” and of losing their royal inheritance. 433 So.2d at 665-66, 668 . The court reasoned that the Bahamian decree was not entitled to comity because it did not conform to Florida’s public policy of basing custody decisions on the best interests of the children. Id. at 668 . The Florida court particularly noted that the Bahamian court had not considered all the factors in Florida’s best interests of the child test:

Section 61.13(3), Florida Statutes (1981) states that the court shall consider and evaluate all factors affecting the best interests of the child, and enumerates some of the *348 significant factors. There are conspicuously missing, among the factors considered by the Bahamian court, the following considerations of Section 61.13(3): (1) length of time the children lived in a stable environment and the desirability of maintaining continuity; (2) education of the children; (3) psychological stability of the parents based on competent evidence; and (4) physical health of the parents. Although the decree purports to have considered the best interests of the children, little evidence based on those interests, as set out by statute, was presented to the court. The factor focused on by the Bahamian court was the “risk” of losing the inheritance of royalty if the children were raised as “little Americans.” Comity must give way to the interests of the state in exercising parens patriae jurisdiction over the child with the objective of protecting the recognized best interests of the child.

Id., 433 So.2d at 668 (emphasis supplied).

Like the Bahamian court order at issue in Al-Fassi , the Pakistani court order, which professes concern for the “welfare” of the child, nonetheless gives no indication that it considered all of the best interest factors. Rather, the court merely said that custody belonged with the father because appellant had interfered with the father’s right to “control” the child. The court appeared to indulge a conclusive presumption that appellant’s interference with Mr. Malik’s ability to see his daughter meant that custody belonged with Mr. Malik. That is not the application of the best interests of the child test, as we have defined it. As the Court stated in In re Adoption/Guardianship No. A91-71A, supra, 334 Md. at 561, 640 A.2d 1085 , “the controlling factor ... in adoption and custody cases is not the natural parent’s interest in raising the child, but rather what serves the best interests of the child.”

The judgment of the Court of III Additional District Judge at Karachi East, to which Ms. Hosain appealed the previous court’s ruling, is equally flawed. The mother’s denial of the father’s access to the child, and the near total emphasis on the father’s “right” to “control” the child, were apparently the primary grounds on which the court based its decision. Like *349 the lower court, the appellate court focused almost exclusively on Ms. Hosain’s interference with Mr. Malik’s rights of “constructive custody” or “control.”

In affirming the award of custody to Mr. Malik, the court said: “The fact that the minor has been removed from the access of the father. The mother has lost her right of hizanat of the minor who is under law deemed to be in constructive custody of [the] father therefore the mother has lost right of hizanat____” The court also made statements that the “father should be deemed to be in constructive custody of the minor” and

the right of a Mohammadan mother of the custody of a minor is subject to the control of the mother [sic; from the context it appears that the court or translator meant to say “father”] and if she takes away the minor against the wishes of the father to a place where [the] father cannot exercise supervision and control she acts without authority and her taking away the minor amounts to removal of the minor from the custody of the father.

The legal authority on which the court based its decision further establishes the apparent conclusive presumption that the mother’s interference with the father’s control of the child was the basis of the custody decree. The court quoted from the case of PLD 1967 Lahore 382 Mst. Churagh Bibi v. Khadim Hussain:

“If a woman who has the hizanat of a ch[i]ld denies the father of the child, who is under Muslim law his or her natural guardian, access to the child, she must be considered not only to have removed the child from the constructive custody of the father, but also to have done something which is against the welfare of the minor....”

Appellant’s allegations of abuse are included in the court’s opinion:

It is also contended that during the time they lived separately since both of the houses happened to be nearer to each other the [appellee] in a drunk position used to visit the appellant and extended threats of dire consequences for *350 life of the appellant and used force to snatch away the minor daughter to coerce the appellant to accept the [appellee] and to go according to his wishes. This also badly affected the mind of the minor who used to get up during night hours and cried ‘BACHAO’ ‘BACHAO’ due to the aggressive behav[ior] and maltreatment at the hands of the appellee.

But, again, there is no indication that the court considered these serious allegations or took the lower court to task for failing to do so. From the foregoing, it is clear that the appellate court did not truly apply the best interests of the child test any more than the lower court had.

The analysis of the Court of Vth Senior District Judge/AS J & R.C. at Karachi East, dated August 10, 1993, is concededly closer to the best interests of the child standard. Nonetheless, while the court paid lip service to something that sounds like a best interests of the child standard, it still did not apply that standard.

In awarding custody to appellee, the court reasoned that Ms. Hosain had “forcibly removed the custody of the minor M[a]hak Malik from the custody of’ the father, that Ms. Hosain was “living a sin life accompanied by her lover,” and that Mr. Malik was the “natural guardian” of the child. It added that the mother lived in “an unislamic society [which] will not be in the welfare and well being of the minor daughter,” while Mr. Malik was “a business man living in an Islamic society with a moral character.” Although the court mentioned that Ms. Hosain had a child with her paramour, who is now her husband, it did not consider or address Mahak’s interest in remaining with her half-sibling. This is inconsistent -with the policy in Maryland that courts should avoid the separation of siblings. See Hadick v. Hadick, 90 Md.App. 740, 748-49 , 603 A.2d 915 , cert. denied, 327 Md. 626 , 612 A.2d 256 (1992).

Overall, the Pakistani court’s discussion amounts to conclusory statements. As with the Bahamian court order at issue in Al-Fassi, supra, there is no indication of a weighing of the various factors embodied in our best interests test, or a *351 consideration of the child’s need for stability. See McCready v. McCready, supra, 323 Md. at 481, 593 A.2d 1128 (“The desirability of maintaining stability in the life of a child is well recognized----”); Cf. Krebs v. Krebs, supra, 255 Md. at 266-67 , 257 A.2d 428 (“Frequent change of custody does not contribute to that feeling of security essential to the mental well being of growing children”); Jordan v. Jordan, 50 Md.App. 437, 443 , 439 A.2d 26 , (1982) cert. denied, 293 Md. 332 (1986) (“ ‘[T]he stability provided by the continuation of a successful relationship with a parent who has been in day to day contact with a child generally far outweighs any alleged advantage which might accrue to the child as a result of a custodial change.’ ” [Citation omitted]). Rather, the court said only that (1) Ms. Hosain denied Mr. Malik access to Mahak; (2) Ms. Hosain was living a sinful life by cohabiting with a paramour; and (3) Mahak would be living in an “unislamic society.” Those reasons do not constitute application of the best interests of the child test.

As for the first reason, Ms. Hosain’s denial of Mr. Malik’s access to Mahak sounds like the father’s-right-to-control rule on which the other courts relied. As for the second reason, the court was certainly entitled to consider that Ms. Hosain lived with another man,' and had a child with him, out of wedlock. But the court never established the correlation between that conduct and Mahak’s best interests. It is settled policy in Maryland that the fact of adultery should be considered “only insofar as it affects the child’s welfare.” Davis v. Davis, 280 Md. 119, 127 , 372 A.2d 231 (1977). Accord Swain v. Swain, 43 Md.App. 622, 628 , 406 A.2d 680 , cert. denied, 286 Md. 754 (1979); Draper v. Draper, 39 Md.App. 73, 79 , 382 A.2d 1095 (1978). Finally, the Pakistani court’s reference to Mahak’s living in an “unislamic society” is reminiscent of the facts of Al-Fassi , in which the Bahamian court had awarded custody to the father on the grounds of the risk of the children’s becoming “little Americans,” of “losing the cultural heritage of Saudi Arabia,” and of losing their royal inheritance. 433 So.2d at 665-68 .

*352 Moreover, like the previous courts, the allegations of substance and domestic abuse were not considered, although the court stated in its opinion:

It is further stated by [appellant, in her written statement] that [appellee] is addict of smoking joints, in the habit [of] consuming' alcoh[o]l and also addict of using tranquilizers, which fact was transpired upon her after the marriage. And due to above addiction, the health of [appellee] is totally wrecked and his mind is unable to deal with his daily life, therefore, he cannot look after the welfare of the minor.

Consideration of these serious charges, regardless of whether the accuser appears, is essential to a meaningful application of the best interests test.

Certainly, I do not intend in any way to criticize Pakistani laws, mores, culture, or customs. Moreover, like the majority, I, too, recognize that Islam is “one of the world’s oldest and largest religions.” But we were clear in Malik that, unless the Pakistani courts applied the best interests standard, comity was not appropriate. The Pakistani courts’ use of phrases such as the “welfare of the minor” does not constitute the application of the best interests of the child standard. These words are, after all, only labels.

III.

The majority accuses Ms. Hosain of bringing this unfortunate situation upon herself and her child through her “improper conduct” in leaving Pakistan and “absconding” to Maryland. 5 It terms her actions a “brazen disdain for the rule of law,” and mentions her “adulterous” relationship with her current husband.

Ms. Hosain did not unlawfully abscond from Pakistan with Mahak. Early in the opinion, the majority acknowledged that *353 appellant left Pakistan before, and not after, appellee was awarded custody. Thus, when Ms. Hosain came to this country, she was not under any legal compulsion to remain in Pakistan or to relinquish custody of Mahak. In essence, she came as an immigrant to our nation of immigrants. The majority’s assertion that appellant attempted to use the Maryland court in “a conscious and apparently calculated plan to circumvent the laws” of Pakistan is also unfounded. She, like many others, has resorted to our courts to defend her current living arrangement with her child, and to contest custody orders from another country that, in her view, are inconsistent with this State’s policy. She should not be chastised for contesting the Pakistani decrees in the courts of the land where she now lives, merely because she and her child are Pakistani by birth.

The majority also suggests that the adoption of my views would sanction wholesale “uprooting” of children and would lead to the influx to Maryland of parents seeking custody of children who have been snatched, or trying to re-litigate issues that have been determined by custody decrees of other courts. I certainly do not want to be understood as encouraging such conduct. It is worth noting that the Maryland General Assembly and the United States Congress have enacted legislation to address these concerns. 6 See, e.g., the UCCJA and the Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A. But we should not lose sight of the fact that this case concerns only one child.

I respectfully dissent.

. The present language of the rule contrasts with earlier versions that required an issue to have been both raised and decided by the lower court, with certain exceptions not pertinent here, in order to be preserved. See Rules 885, 1085 (repealed). For example, Rule 1085, which governed appeals to this Court, stated in pertinent part: "This Court will not ordinarily decide any point or question which does not plainly appear by the record to have been tried and decided by the lower court.” But a 1989 rule change substituted the word “or” for the word "and.” Thus, three of the cases that the majority cites to support its position, Medley v. State, 52 Md.App. 225, 231 , 448 A.2d 363 (1982); Tichnell v. State, 287 Md. 695, 713-14 , 415 A.2d 830 (1980); Dresbach v. State, 228 Md. 451, 453 , 180 A.2d 299 (1962), are inapposite, because they were decided before this critical rule change.

. For example, Rule 2-517(a) provides such a requirement for objections to the admission of evidence in a civil case, and Rule 4-323(a) provides a similar requirement for criminal cases. Rule 2-517(a) states, in pertinent part: “An objection to the admission of evidence shall be made at the time the evidence is offered or as soon thereafter as the *335 grounds for objection become apparent. Otherwise, the objection is waived.” (Emphasis added).

. The majority cites Velez v. State, 106 Md.App. 194 , 664 A.2d 387 (1995), to support its conclusion on the prejudice issue. Velez is not on point. Velez concerned the trial court's election to proceed at pretrial suppression hearing in the absence of counsel. The hearing here, by contrast, was tantamount to a trial on the merits. Moreover, our decision in Velez depended not only on the fact that the decision did not affect the outcome, but also on the fact that several safeguards existed to protect the defendant. See id. at 216-17 , 664 A.2d 387 . First, the defendant's counsel missed the testimony of only one collateral witness. Id. at 211 , 664 A.2d 387 . Also, counsel for another defendant took “copious” notes for absent counsel. Id. Moreover, and most important, the court gave counsel the opportunity to review the testimony and decide whether he wished to recall the witness for cross-examination. Id. at 212 , 664 A.2d 387 . Our decision in Velez was thus highly fact-sensitive.

. Appellant explained that she failed to return to Pakistan because, given her status as an adulterer, she could be severely punished. In view of Pakistani and Islamic laws and traditions, which the majority thoroughly reviewed, the mother also apparently recognized that the proceedings in Pakistan would likely result in an award of custody to the father, notwithstanding her claims of abuse. Cf. Hanke v. Hanke, 94 Md.App. 65, 72 , 615 A.2d 1205 (1992) ("Where the evidence is such that a parent is justified in believing that the other parent is sexually abusing the child, it is inconceivable that the parent will surrender the child to the abusing parent without stringent safeguards----”).

. I am not, as the majority seems to suggest, condoning parents who flagrantly disobey court orders or unlawfully bring their children to Maryland, "secrete” them, and then apply for custody on the ground that the child has bonded with the absconding parent.

. According to appellant, the Hague Convention on the Civil Aspects of International Child Abduction is the international version of the UCCJA. The parties agree that Pakistan is not a signatory to the Hague Convention. Moreover, appellant claims that appellee's expert conceded that Pakistan does not recognize child custody awards issued by other nations.