Custody-Decision-Making Criteria



A. History-The Resort to Presumptions

Historically, various "presumptions" were used by the courts to resolve custody disputes. They were easy to apply, eliminated factual complexity, and by reason of their predictability, forestalled many potential custody disputes. However, they were also a repository for social, economic, and moral bias which lay unreflectively at their roots. Judicial willingness to eliminate the easy path of "presumption" has led to the "modern" era of custody litigation characterized by its factual complexity, its search for alternative standards, its use of "experts" to assist in resolving the disputes, and, perhaps most of all, its uncertainty and confusion.

1. Maternal preference/tender years

Historically, preference would be given to the mother of a "young and immature child" in a custody dispute.77 During the period of time that the maternal preference dominated custodial awards, the courts placed the burden on the father to prove the mother was unfit if the father was to have any chance of being awarded custody. In Rand v. Rand,78 the Court stated that the language of Art. 72A, § 1, combined with adoption of the Equal Rights Amendment (ERA), mandated the conclusion that "child support awards must be made on a sexless basis." Without specifically referring to Maryland's ERA,79 the maternal preference rule was modified in Cooke v. Cooke.80 The Appellate Court of Maryland concluded that "maternal preference" should not even be considered unless the court has first concluded that the circumstances are in fact equally balanced between awarding custody to the mother or to the father. The statement by Judge Liss in McAndrew v. McAndrew,81 that "the maternal preference has been abolished by statute in child custody cases" remains the law.82

2. Adultery

A long line of Maryland cases established a rebuttable presumption of unfitness on the part of an adulterous parent.83 The cases are reviewed at length in Deckman v. Deckman.84 This rule was abandoned in Davis v. Davis.85 There, the Court concluded:

. . . [W]hereas the fact of adultery may be a relevant consideration in child custody awards, no presumption of unfitness on the part of the adulterous parent arises from it; rather it should be weighed, along with all other pertinent factors, only insofar as it affects the child's welfare.86

In Swain v. Swain,87 the Court, relying upon Davis v. Davis,88 upheld the finding of a lower court that it could not speculate upon the effect of the continued adulterous relationship of Mother with a married man. The adulterous relationship had not been shown to have had a harmful effect upon the child's welfare, and Mother's adulterous conduct did not outweigh the circumstances that otherwise would have impelled the court to grant her custody.

B. Best Interests of the Child Standard

The defining criteria for every decision regarding a child's relationship to his or her divorced parents is the child's "best interests." The formulation of that principle in Montgomery County Department of Social Services v. Sanders,89 still remains the "bottom line" in custody cases. Inevitably (and perhaps wisely), the best all of us can do is to define that term on a situation by situation, and case by case, basis.

1. The broad themes

a. Psychological parenting

Of particular interest in the Montgomery County Department of Social Services v. Sanders, was the attempt to have the courts adopt a socio-psychological concept of psychological parenthood as the definitive approach to determine a child's "best interests" in a custody dispute. This theory, set forth in the excellent book, J. Goldstein, A. Freud, A. Solnit, Beyond the Best Interests of the Child (1913), is as follows:

Under the "psychological parenthood" principle, separation from the natural parent for a sufficient length of time saps the bond of love and affection between child and parent while simultaneously forging a strong psychological link which joins the child to a surrogate parent. Under [such] circumstances, the surrogate parent becomes the "psychological parent," the one to whom the child turns for security, love, and sense of emotional well-being. After the shift of allegiance by the child to the "psychological parent" is completed, a return to the biological parent would, theoretically, result in severe emotional trauma, detrimental to the child's best interests.90

Chief Judge Gilbert concluded that the court should neither sweepingly commend nor condemn the psychological parent concept in custody proceedings. Rather, each case must be resolved on its own facts.

b. Inability to provide mutual access to child(ren)

It is in every child's best interests to have a relationship with both of his or her parents. Only by having a relationship with each parent can a child consciously decide and define the type of person the child is to become. The parent who is not able to allow a child this opportunity is, by some, viewed a problematic custodian of the child's future. This parental quality has played a role in several Maryland custody decisions.

In Bienenfeld v. Bennet-White, there was evidence that the children's ties to Father would be threatened if Mother were given custody, because Mother married a man with whom the children had a hostile relationship, aggravated by Mother and stepfather's combined insistence on the primacy of their religious views. The Court noted "the importance to children of significant contact with both parents is well recognized."91

. . . [T]o deny to the child an opportunity to know, associate with, love and be loved by either parent, may be more serious ill than to refuse it in some part those things which money can buy.92

2. Factors to be considered

In trying to put flesh on the bare bones of the "best interests" standard, a court must consider "the totality" of all factors in the alternative environments.93 The most notable attempts to list this "totality" have been in Montgomery County Department of Social Services v. Sanders, and Taylor v. Taylor.94 Even though these cases were decided in 1976 and 1986, respectively, they still serve as the basis for courts in determining "best interest". Recent cases, such as Jose v. Jose (Farnham), still apply these factors.95

a. Montgomery County Department of Social Services v. Sanders96

Chief Judge Gilbert stressed that no single factor outweighs all others, and that the trial court must consider the totality of all factors. He outlined numerous factors a court must evaluate, citing relevant cases for each factor listed. These factors include, but are not limited to:

(1) The fitness of the parents.

(2) The character and reputation of the parties.

(3) The desire of the natural parents and the content of any agreement between them.

(4) The potentiality of maintaining natural family relations.

(5) The preference of the child, at least when the child is of sufficient age and capacity to form a rational judgment.

(6) Any material opportunities affecting the future life of the child.

(7) The age, health and sex of the child.

(8) The suitability of the residences of the parents, and whether the noncustodial parent will have adequate opportunities for visitation.

(9) How long the child has been separated from a natural parent who is seeking custody.

(10) The effect of any prior voluntary abandonment or surrender of custody of the child.97

The bottom line in child custody cases remains "the best interests of the child."

b. Joint custody-Taylor embellishments

In Taylor v. Taylor,98 the Supreme Court of Maryland enlarged the above list in a case involving joint custody. They are additional factors to be considered in all custody cases in determining how time and decision-making are to be allocated and/or shared in the divorced family. They include, but are not limited to:

(1) Willingness of each parent to share custody;

(2) Psychological and physical "fitness" of each parent;

(3) Strength of relationship of child to each parent;

(4) Preference of the child;

(5) Potential disruption of shared physical custody upon child's social and school life;

(6) Geographic proximity of parents' homes;

(7) Demands of parental employment;

(8) Age and number of children involved;

(9) Sincerity (motivation) of parent's requests;

(10) Financial status of parents;

(11) Impact on state or federal assistance;

(12) Benefit to parents;

(13) Other factors.99

c. Ability to communicate

In Shenk v. Shenk,100 the parties were unable to speak directly, and instead wrote notes to each other.101 Nevertheless, the court was persuaded that both parents agreed on the ultimate outcomes of the decisions made on behalf of the children. The parties had agreed on physical custody and visitation. There was no evidence that either party had attempted to turn the children against the other. The most serious dispute involved attendance at a Catholic school. Father did not question the decision, but only expressed concern that Mother's parents were paying the tuition. In addition, the court noted the intensity of emotion produced by litigation and expressed confidence that the parties would do even better at communicating as time passed. Joint legal custody was appropriate.

In Santo v. Santo,102 the Supreme Court of Maryland declined to hold that, as a matter of law, it was error by a trial court to award joint custody to parents who fail to communicate effectively with one another. There, each parent was given tie-breaking authority in certain legal custody areas. Although Father argued that this decision contradicted the purpose of Taylor v. Taylor,103 and a "hybrid" cannot be created, the Supreme Court disagreed with him. The best interests of the children were achieved by both parents having equal input on legal custody decisions. The parents were ordered to try to decide together matters affecting their children. "When, and only when the parties are at an impasse after...

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