It will be seen that courts of equity in this state have full power, and it is their duty, to determine  who shall have the custody, control and guardianship of minor children, and who shall be charged with their maintenance and support, and this without regard to the question of whether or not the parents of said child or children have been divorced or are living apart.” Id., at 267, 145 A. at 615.

Pertinent to the issue of parental custody over minor children, a provision addressing the subject was added to the Maryland Code in 1929. In addition to acknowledging and mandating that “[t]he father and mother are the joint natural guardians of their minor child” and charging them equally with its support, care, nurture, welfare and education, Acts of 1929, ch. 561 provided, with respect to the award of custody to a parent, that “[w]here the parents live apart, the court may award the guardianship of the child to either of them.” Captioned, “Parent and Child,” it was effective June 1, 1929 and was codified at Md.Code (1924) Article 72A, § 1. As a result of Code Revision, the applicable section now is § 5-203 of the Family Law Article, having been re-codified without substantive change, Acts of 1986, ch. 65;

Acts of 1929, ch. 561 provided:

“The father and mother are the joint natural guardians of their minor child and are equally charged with its care, nurture, welfare and education. They shall have equal powers and duties, and neither parent has any right superior to the right of the other concerning the child's custody. If either the father or mother dies, or abandons his or her family, or is incapable of acting, the guardianship devolves upon the other parent. Where the parents live apart, the court may award the guardianship of the child to either of them.”

Md.Code (1924) Art. 72A, § 1, at which the provision was codified, was amended by Acts of 1951, ch. 678, by striking the word “equally” and charging the parents, “jointly and severally,” not only with the care, nurture, welfare, and education of their minor child, but also with its “support.” Thus, § 5-203(b), the successor to Art. 72A, § 1, now provides:

“(b) The parents of a minor child ...:

“(1) are jointly and severally responsible for the child's support, care, nurture, welfare, and education; and

“(2) have the same powers and duties in relation to the child.”
 

As we have seen, it cannot be doubted that the fact that the parties are living under the same roof, have not physically separated, is not, alone, sufficient to justify the court in refusing to grant either party a divorce. “Abandonment, within the contemplation of the divorce statute means something more than merely ceasing to live together; it means a cessation of the marital relation. Thus we recognize that a desertion may exist although the husband and wife live under the same roof.”

If a divorce may be decreed when the parties are living under the same roof, it would make no sense, indeed, it would be illogical, to deny the court the right to determine the custody, and support of the children of that marriage and, to the extent required, establish visitation with respect to them.

To be sure, § 5-203(d)(1) unmistakably contains the requirement that “the parents live apart” as a condition of the court awarding custody to either parent. And, viewing the statute in this context, as a self contained unit, that condition is both clear and unambiguous.

Section 5-203(d)(1) may not be read in isolation, however.  It must be read in light of, and in conjunction with, the court's jurisdiction in divorce and custody matters, § 1-201(a) and (b), the relationship between divorce and custody, as defined by this Court, see Barnard v. Godfrey, supra, 157 Md. at 267, 145 A. at 615-616, and the applicable grounds for divorce. § 7-102(a). Waddell v. Kirkpatrick, 331 Md. 52, 60, 626 A.2d 353, 357 (1993) (“the Legislature is presumed to be aware of the interpretation that this Court has placed upon its enactments”); see Pack Shack, Inc. v. Howard County, 371 Md. 243, 257, 808 A.2d 795, 803 (2002); Blevins v. Baltimore County, 352 Md. 620, 642, 724 A.2d 22, 33 (1999).

In Barnard, just months before the enactment of the predecessor legislation to § 5-203(a), requiring “living apart” as a condition for the award of custody to one parent over the other, we construed the then applicable statute as empowering the equity courts, whenever application for that relief was sought by one or both parents, to determine custody, support and visitation “ without regard to the question of whether or not the parents of said child or children have been divorced or are living apart.” 157 Md. at 267, 145 A. at 615 (emphasis added). We also acknowledged that section “as declaratory of the inherent power of courts of equity over minors, and [that] in the exercise thereof it should be exercised with the paramount purpose in view of securing the welfare and promoting the best interest of the children.” . The Legislature did not disturb the courts' right to determine custody, support or visitation when a divorce was not decreed, even though, when it enacted Acts of 1929, ch. 561, it knew that it was the law that parties living under the same roof could be divorced. Klein v. Klein, 146 Md. 27, 33, 125 A. 728, 730 (1924); Roth v. Roth, 145 Md. 74, 125 A. 556 (1924).

Given the purpose of the courts' power over minors, to promote their best interest, and the connection between custody decisions and divorce, the logic of the result the legislation will effect may be considered when trying to discern the Legislature's intent. Scheinin v. Scheinin, 200 Md. 282, 89 A.2d 609 (1952). There, Mrs. Scheinin filed a complaint for a divorce a mensa et thoro, now a limited divorce pursuant to § 7-102, on the grounds of desertion and cruelty of treatment and, in addition, alimony, for custody of the children of the marriage, support, and counsel fees. Id. at 285, 89 A.2d at 610. The chancellor granted Mrs. Scheinin a limited divorce on the ground of constructive desertion and awarded her alimony, custody of the children, and child support.  We affirmed the decree granting Mrs. Scheinin a limited divorce, noting that “[i]t is beyond question that there may be a desertion although the husband and wife continue to live under the same roof.” Without referring to Art. 75A, § 1, which then prescribed the “living apart” requirement, but defining desertion in the marital context in terms of “ceasing to live together as husband and wife,” the Court also affirmed the custody and support decision, thus sanctioning the determination of custody and support where the parents, rather than living apart, are living under the same roof.

The trial court, in short, has the jurisdiction and power to determine the custody, visitation, and support even when the parties continue to live together. Picture exactly how that works in practical terms. Consider the circumstance where the non-custodial spouse has a visitation schedule of every other weekend. Remember now everyone is living under the same roof. Is the non-custodial spouse not to say anything to the children until the weekend.  And oh yeah lets also remember the non-custodial spouse pays child support while living under the same roof with the kids. You will note Ricketts did not mention the right to order use and possession. It all makes sense if you realize Maryland Law wants to keep families together at all cost.