Joint Legal Custody—It’s A Tie!

In 1986, the Maryland Court of Appeals in Taylor v. Taylor introduced the major factors for trial courts to consider when determining custody arrangements. 306 Md. 290, 508 A.2d 964. The Taylor court determined that the parents’ capacity to communicate and reach shared decisions affecting their child’s welfare is the most important factor when awarding joint custody.  The court held that effective parental communication is key because both parents are charged in making decisions regarding the child’s future, and if parties are unable to do so then the child will suffer the consequences. 

However, recently, in Santo v. Santo, the Maryland Court of Appeals determined that joint custody may be awarded to parents who are unable to effectively communicate.  448 Md. 620, 141 A.3d 74 (2016). The court emphasized that a trial court must articulate its reasoning for awarding joint custody in these situations but held that joint custody can still be in the best interest of the child regardless of parental communication skills.

The parties in this case were described as parents that had been at war with each other for years, therefore it was clear to the circuit court that no decision regarding the parties two minor children would be agreed on.  Because the circuit court knew all attempts by the parties to make decisions on behalf of their minor children would fail, the court included a tie-breaking provision in its award for joint custody.  With a tie-breaking provision one parent gets the last word if the parents are unable to make a decision. In Shenk v. Shenk, the Maryland Court of Special Appeals held that a trial court did not abuse its discretion in designating one parent as the “tie-breaker” for all decisions affecting the parties’ children. 159 Md. App. 548, 960 A.2d 408 (2004). Tie-breaking provisions give one parent the authority to make the final judgment, however, a tie-breaking provision requires a genuine effort to communicate by both parties in order to ensure that one parent does not fully take charge in a joint custody arrangement. The court concluded that because parents must work together and equally participate in matters regarding their children, a custody arrangement that includes a tie-breaking provision is still a form of joint custody.

The circuit court reviewed several factors before rendering its decision, including parental fitness, sincerity, financial resources, ability to maintain a stable home and character. The Court of Appeals found that the circuit court’s painstaking analysis of the case was sufficient. Both parents loved their children and could independently provide for them. This resulted in the court holding that it would be in the best interest of the children to see both parents regularly and have close relationships with both parents. The court concluded that joint custody was the best option for the parties because both parents would have access to information regarding their children and would be able to further develop their relationships with their children. Because it was in the best interest of the children, the court held that a trial court is within its discretion to grant joint custody to parents who are unable to effectively communicate regarding their children.

As indicated above, a trial court must complete careful analysis of the circumstances in order to award joint custody to uncooperative parties, it will be interesting to see how the courts apply this ruling and how it will be incorporated into high conflict custody disputes.