CHILD CUSTODY

the Taylor v Taylor - Factors for Shared Physical see Sanders for Court factors on sole physical custody

Maryland Courts follow the factors outlined in this case to determine joint legal and shared physical custody

Capacity of the Parents to Communicate and to Reach Shared Decisions Affecting the Child's Welfare. This is clearly the most important factor in the determination of whether an award of joint legal custody is appropriate, and is relevant as well to a consideration of shared physical custody. Rarely, if ever, should joint legal custody be awarded in the absence of a record of mature conduct on the part of the parents evidencing an ability to effectively communicate with each other concerning the best interest of the child, and then only when it is possible to make a finding of a strong potential for such conduct in the future.

With few exceptions, courts and commentators agree that joint custody is a viable option only for parents who are able and willing to cooperate with one another in making decisions for their child.

When the evidence discloses severely embittered parents and a relationship marked by dispute, acrimony, and a failure of rational communication, there is nothing to be gained and much to be lost by conditioning the making of decisions affecting the child's welfare upon the mutual agreement of the parties. Even in the absence of bitterness or inability to communicate, if the evidence discloses the parents do not share parenting values, and each insists on adhering to irreconcilable theories of child-rearing, joint legal custody is not appropriate. The parents need not agree on every aspect of parenting, but their views should not be so widely divergent or so inflexibly maintained as to forecast the probability of continuing disagreement on important matters. The Courts will examine the sense of respect for one another as parents, despite the disappointment in each other as marriage partners. The fact that each can appreciated the value of the other to the child, and is sensitive to the possible loss of a parent-child relationship.  There must be a demonstrated capacity to tolerate the minor differences that existed and to distinguish the important from the unimportant ones. The parents should be able to relinquish control and not interfere in the other parent's relationship with the child. They should each be personally flexible and able to accommodate to the needs of the arrangement, the child, and even to the other parent. It was important that each parent had a sense of self-esteem as a parent in his or her own right in order to maintain the balance in the co-parental relationship.
 

Ordinarily the best evidence of compatibility with this criterion will be the past conduct or “track record” of the parties. We recognize, however, that the tensions of separation and litigation will sometimes produce bitterness and lack of ability to cooperate or agree. The trial judge will have to evaluate whether this is a temporary condition, very likely to abate upon resolution of the issues, or whether it is more permanent in nature. Only where the evidence is strong in support of a finding of the existence of a significant potential for compliance with this criterion should joint legal custody be granted. Blind hope that a joint custody agreement will succeed, or that forcing the responsibility of joint decision-making upon the warring parents will bring peace, is not acceptable. In the unusual case where the trial judge concludes that joint legal custody is appropriate notwithstanding the absence of a “track record” of willingness and ability on the part of the parents to cooperate in making decisions dealing with the child's welfare, the trial judge must articulate fully the reasons that support that conclusion.
 

Willingness of Parents to Share Custody. Generally, the parents should be willing to undertake joint custody or it should not be ordered. We are asked by Appellant, and by the Women's Legal Defense Fund as amicus curiae, to hold that a trial judge may never order joint legal custody over the objection of one parent. They argue, with some force, that unwillingness on the part of one parent to share custody inevitably presages intransigence or inability to cooperate in making decisions affecting the welfare of the child. While we agree that the absence of an express willingness on the part of the parents to accept a joint custody arrangement is a strong indicator that joint legal custody is contraindicated, we are unwilling to fashion a hard and fast rule that would have the effect of granting to either parent veto power over the possibility of a joint custody award. A caring parent, believing that sole custody is in the best interest of the child, may forcefully advance that position throughout the litigation but be willing and able to fully participate in a joint custody arrangement if that is the considered decision of the court.
 

Fitness of Parents. The psychological and physical capabilities of both parents must be considered, although the determination may vary depending upon whether a parent is being evaluated for fitness for legal custody or for physical custody. A parent may be fit for one type of custody but not the other, or neither, or both.
 

Relationship Established Between the Child and Each Parent. When both parents are seen by the child as a source of security and love, there is a favorable climate for joint custody. On the other hand, joint custody may be inappropriate when opposed by the child, or when there are indications that the psychological or emotional needs of the child would suffer under a joint custody arrangement.
 

Preference of the Child. The reasonable preference of a child of suitable age and discretion should be considered. In addition to being sensitive to the possible presence of the “lollipop” or “rescue” syndromes, the trial judge must also recognize that children often experience a strong desire to see separated parents reunited, and this motivation may produce an unrealistic preference for joint custody.

The so-called “lollipop syndrome” relates to the situation where one parent in a custody battle may shower the child with gifts and pleasant times, and impose no discipline in order to win the child's preference. The “rescue syndrome” relates to the expression of preference by a child for the parent perceived by the child to be the “weaker” of the two, in the belief that the stronger parent will survive in any event, but the weaker parent needs the child.

Potential Disruption of Child's Social and School Life. Joint physical custody may seriously disrupt the social and school life of a child when each parent has the child for half the year, and the homes are not in close proximity to one another. In such cases the amount of time each parent has physical custody may be adjusted without interfering with the concept of continued joint custody.
 

Geographic Proximity of Parental Homes. Parental homes within the same school district offer certain advantages in a joint custody situation. The child may enjoy joint physical custody without changing schools or being required to constantly change a circle of friends, and the parents may find proximity a benefit in discussing the decisions to be made concerning the child. However, distance is not a bar, and when the distance between homes is great, a joint custody arrangement may offer the only practical way to preserve to the child a meaningful relationship with each parent. Depending upon the age and emotional maturity of the child, similarity of the respective home environments may be desired, or exposure to dissimilar environments, cultures and opportunities for learning may be indicated.

Demands of Parental Employment. In some situations, joint physical custody will be appropriate only if the work hours of the parents are different, or there is flexibility in the demands of the employment of each.
 

Age and Number of Children. The factor of age obviously interrelates with other factors already discussed. The number of children involved may pose practical difficulties to a joint custody arrangement, but on the other hand may be helpful to both parents in bringing about a sharing of the pressures of single family parenting of a number of children. In rare cases, split  custody may be preferred over sole or joint custody.
 

Sincerity of Parents' Request. A number of interested observers have opposed the concept of joint custody absent mutual agreement on the ground that one spouse may interpose a demand for joint custody solely to gain bargaining leverage over the other in extracting favorable alimony, child support or property concessions. Drawing upon the reasoning of King Solomon writers have suggested that a parent truly interested in the welfare of a child will give up almost anything to protect the child, and thus the threat of enforced joint custody can be used to extract unwarranted concessions. While the remedy they suggest-denial of joint custody in the absence of parental agreement-is unnecessarily restrictive, we acknowledge the legitimacy of these concerns and highlight the necessity to carefully examine the motives and sincerity of each parent.
 

Financial Status of the Parents. Joint physical custody imposes financial burdens upon the parents because of the necessity of maintaining two homes for the child, with separate furnishings and often separate toys, equipment, and clothing.
 

Impact on State or Federal Assistance. Aid to families with dependent children and eligibility for medical assistance may be affected by the award of joint custody. The necessary showing of “absence” of a parent may be challenged when there is an award of joint custody that includes shared physical custody.  Although the primary focus is properly upon the best interest of the child, it is also appropriate to consider the salutary effect that joint custody may have on the parents, not only because their feelings and interests are worthy of consideration, but also because their improved self-image as parents is likely to redound to the ultimate benefit of the child.
 

MARYLAND UNIFORM CHILD CUSTODY AND ENFORCEMENT ACT 9.5-201 et. al.

 This is an interesting and slightly complicated statute. It involves those situations where one parent lives in one state and the other lives in another state. The issues arise when custody is at play and now the question is what state has jurisdiction. Maryland will exercise jurisdiction under the following circumstances:

 Grounds for jurisdiction

a court of this State has jurisdiction to make an initial child custody determination only if:

(1)   this State is the home state of the child on the date of the commencement of the proceeding,

(2)   or was the home state of the child within 6 months before the commencement of the proceeding

(3)   and the child is absent from this State but a parent or person acting as a parent continues to live in this State;

(4)   a court of another state does not have jurisdiction,

(5)   or a court of the home state of the child has declined to exercise jurisdiction on the ground that this State is the more appropriate forum under § 9.5-207 or § 9.5-208 of this subtitle, and:

(6)   the child and the child's parents, or the child and at least one parent or a person acting as a parent, have a significant connection with this State other than mere physical presence; and

(7)   substantial evidence is available in this State concerning the child's care, protection, training, and personal relationships;

(8)  all courts having jurisdiction have declined to exercise jurisdiction on the ground that a court of this State is the more appropriate forum to determine the custody of the child under § 9.5-207 or § 9.5-208 of this subtitle; or

(9)  no court of any other state would have jurisdiction under the criteria specified in item (1), (2), or (3) of this subsection.

(10)  or §9.5-204 applies, a) A court of this State has temporary emergency jurisdiction if

a.      the child is present in this State and

b.      the child has been abandoned or

c.      it is necessary in an emergency to protect the child because the child, is subjected to or

d.      threatened with mistreatment or

e.      abuse.

"Home state" means:

(1) the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months, including any temporary absence, immediately before the commencement of a child custody proceeding; and

(2) in the case of a child less than 6 months of age, the state in which the child lived from birth with any of the persons mentioned, including any temporary absence.

A Word Of Caution 

 When court may decline jurisdiction

(a) Except as otherwise provided in § 9.5-204 of this subtitle or by other law of this State, if a court of this State has jurisdiction under this title because a person seeking to invoke its jurisdiction has engaged in unjustifiable conduct, the court shall decline to exercise its jurisdiction unless:

(1) the parents and all persons acting as parents have acquiesced in the exercise of jurisdiction;

(2) a court of the state otherwise having jurisdiction under §§ 9.5-201 through 9.5-203 of this subtitle determines that this State is a more appropriate forum under § 9.5-207 of this subtitle; or

(3) no court of any other state would have jurisdiction under the criteria specified in §§ 9.5-201 through 9.5-203 of this subtitle.

Remedy to ensure safety of child

(b) If a court of this State declines to exercise its jurisdiction under subsection (a) of this section, it may fashion an appropriate remedy to ensure the safety of the child and prevent a repetition of the unjustifiable conduct, including staying the proceeding until a child custody proceeding is commenced in a court having jurisdiction under §§ 9.5-201 through 9.5-203 of this subtitle.

Assessments of expenses and fees

(c)(1) If a court dismisses a petition or stays a proceeding because it declines to exercise its jurisdiction under subsection (a) of this section, the court shall assess against the party seeking to invoke the court's jurisdiction necessary and reasonable expenses, including costs, communication expenses, attorney's fees, investigative fees, expenses for witnesses, travel expenses, and child care during the course of the proceedings, unless the party from whom fees are sought establishes that the assessment would be clearly inappropriate.

(2) The court may not assess fees, costs, or expenses against this State unless authorized by law other than this title.

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