Recent Developments and Trends


in Maryland Custody Laws by David V. Diggs


True to MTLA’s mission to keep families safe, the Trial Reporter focuses this issue upon our children and family law. Outlined below are seven develop- ments and trends in Maryland that every domestic practitioner should have on his or her radar. Those topics addressed elsewhere in these pages – Parental Alienation Syndrome, De Facto Parent- ing, Parenting Coordinators and the New Adoption Rules–all deserve their place on this list and most have been omitted merely to avoid redundancy. Outlined below is a survey of recent leg- islative changes, case law development and, in broadest terms, our cultural evolution.


A Child Custody Statute for Maryland?


A child custody statute may be coming


to Maryland courtesy of the proponents of joint custody. Recent legislative ses- sions have seen the introduction of bills that would make joint custody and/or shared parenting the presumptive custo- dial arrangement. Every year, these bills are defeated as unnecessary intrusions upon judicial discretion, leaving Mary- land in the minority of 13 states with no statute or case law creating a presump- tion favoring shared parenting.1 For many legislators, this annual rite


has highlighted the absence of a custody statute in Maryland. A bill drafted by family law practitioners, including Del. Kathleen M. Dumais, Esq. (Dem., Dist. 15, Montg. Co.) and Nancy Sachitano, Esq., provides that “the best interest of the child shall be the primary con- sideration” in any custody litigation. Beyond this familiar starting point of


1


“Family Facts,” Children News, Summer 2005, page 7, Children’s Rights Council.


8


best interest, the bill would serve to codify and streamline custody case law. It defines physical custody as “a child’s living arrangements.”2


Legal custody is


defined as “the right and obligation to make long-range decisions involving education, religious training, discipline, medical care, and other matters of major significance concerning the child’s life and welfare.” This provision serves as a useful clarification because, in many instances, “legal custody” is a vague concept that often means whatever the court says it means.3 With the guidance provided by the


new statute, the trial court would still retain broad authority to craft a custody order suitable to each individual case. Legal custody could “be joint, sole, or any other arrangement the court may determine is in the best interest of the child.” Likewise, physical custody “may be any timesharing arrangement the court may determine is in the best inter- est of the child.” The proposed statute draws much of


its inspiration from Montgomery County v. Sanders,4


the seminal case setting forth


those factors that a court must consider when ruling on custody. The statute expands upon Sanders and adds to that case’s 10 factors other relevant consid-


2


All references in this section 1., unless oth- erwise indicated, are from the unpublished “Proposed Custody Statute,” suggesting amendments to MD. CODE ANN., FAM. LAW ART. §§ 9-201, et seq.


3 See, for example, Shenk v. Shenk, 159


Md.App. 548, 860 A.2d 408 (2004), where the parties were awarded the joint legal custody of three children. The mother, as the physical custodian, was granted the final authority to make decisions if the parents could not reach a joint decision on matters of import to the children. 4 38 Md.App. 406, 381 A.2d 1154 (1977).


Trial Reporter


erations found elsewhere in the case law, including:


the capacity of the parents to communicate and to reach shared decisions affecting the child’s wel- fare . . . ;


the relationship established between the child and each parent;


the demands of parental employ- ment;


the sincerity of a parent’s request;


the benefit to the parents where such benefit will likely result in a benefit to the child;


the age, sex, and health of the child, except that any such consideration shall not, in and of itself, be a con- clusive consideration;


the number of children each parent has in the household;


any history of domestic violence between the parties or by a party and a child; [and,]


any other consideration the court determines is relevant to the best interest of the child.


In determining physical custody, the


court would also be directed to consider “geographic proximity . . . , [t]he poten- tial disruption of the child’s social and school life . . . and [a]ny impact on State or federal assistance.” Impermissible fac- tors include race, ethnicity, gender and the religion of either the parent or child. Extramarital sexual conduct and sexual orientation are not to be considered, “except upon a showing of harm to the child.” The parents’ relative financial situations are to be considered only


(Continued on page 10) Winter 2008


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