In the Court of Appeals decision on July 11, 2016, in Santo v. Santo, the court increased a Judge’s ability to determine what legal custody arrangement is in the child’s best interest and even if the parties lack the capacity to communicate or cooperate well, a court can still order joint legal custody and are legally authorized to use tie-breaker provisions in custody awards. What the court ultimately concluded by this decision is that there is more than one factor set forth in Taylor v. Taylor and Sanders v. Montgomery County that serves as a prerequisite to a custody award. However, at the conclusion of a merit hearing a judge should articulate the factors he or she considered when determining the ordered custody arrangement and set forth the facts that support their conclusion. Especially in those cases where a court considers awarding joint legal custody to parents who cannot communicate effectively. In such cases, a court must articulate well the justification for awarding joint custody.
Since the late 1980s the following have been the factors the Court considers when determining what custody arrangement is in a child’s best interest:
- The psychological and physical capabilities of both parents, including any conduct and characteristic of a parent which may reflect on the parent’s ability to care for a child and which may have an adverse impact on the welfare of a child. Adultery or choice of sexual relationships is not a factor.
- Character and reputation of the parties.
- Desire of the natural parents and agreements between the parties. The court may modify any provision of an agreement between parents with respect to the care, custody, education or support of any minor child of the spouses, if the modification would be in the best interests of the child.
- Potentiality of maintaining natural family relations.
- Preference of a child where the child is of sufficient age and intelligence to form a rational judgment, but such child’s wish is certainly not controlling.
- Material opportunities affecting the future life of the child.
- Age, health and sex of the child. Contrary to popular belief, there is no assumption in Maryland that the child will go to the mother.
- Residences of parents.
- Length of separation from the natural parents.
- Prior voluntary abandonment or surrender.
- Sincerity of parent’s request. (Has one parent requested joint custody merely to gain bargaining leverage over the other in extracting favorable financial or property concessions?)
- Financial status of the parents. The court must consider the financial burden of maintaining two homes for a child.
- Impact on state or federal assistance.
- Benefit to parents, to the extent that any such benefit to the parents is likely to redound to the ultimate benefit of the child.
- A trial judge should consider all other circumstances that reasonably relate to the issue of joint custody.
- Evidence of abuse by a party against: the other parent of the party’s child; the party’s spouse; or any child residing within the party’s household (including a child other than the child who is the subject of the custody or visitation proceeding) may be considered as a factor bearing on the welfare and best interests of the child.
The following additional factors are particularly relevant to determining the appropriateness of a joint custody award:
- Communication: Can the parents communicate and to reach shared decisions affecting the child’s welfare. This is clearly the most important factor in determining whether an award of joint legal custody is appropriate and for consideration of shared physical custody. If the parent’s track record is one of inability to effectively communicate on matters involving the child and there is no strong potential for effective communication in the future, joint custody is not warranted. If the evidence demonstrates the parents do not share parenting values and each insists on adhering to irreconcilable theories of child rearing, joint legal custody is not appropriate.
- Religion: Another factor that has appeared in Maryland custody cases is a parent’s religion and the child’s religious upbringing to the extent it impacts the child’s physical or emotional welfare. It has to be clearly shown that a parent’s religious practices have been or are likely to be harmful to the child before the court will interfere with those religious practices.
- Relationship established between the child and each parent.
- Potential disruption of child’s social and school life.
- Geographic proximity of parental homes.
- Demands of parental employment.
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