Child Custody – The Courts Can Do [Nearly] Anything


In evaluating child custody cases, the Maryland appellate courts give wide berth to the decisions of the trial courts.  A judicial determination associated with child custody will not be disturbed unless the trial court abuses its discretion.  This standard of review accounts for a trial court’s unique opportunity to observe the demeanor and credibility of the parties and the witnesses.

What happens in situations in which parents cannot communicate with one another?  Can a trial court require parents to participate in a joint legal custodial arrangement when parents do not have the ability to come to the simplest of agreements about the issues having a long term impact on the health, education, and religious practices of their children?

According to the holding in the recently decided case, Santo v. Santo, filed on July 11, 2016, the answer to this question is ‘yes’.  The Maryland Court of Appeals did not abuse its discretion when it awarded the parties joint legal custody with tie-breaking provisions over several major matters affecting the lives of their children.  Trial courts have broad discretion in how they fashion joint custody awards.  The Court further held that although the parents clearly lacked the capacity to communicate or cooperate well, this inability to communicate does not preclude the court from making an award of joint legal custody.  To elevate effective parental communication so that it becomes a prerequisite to a joint custody award would undermine the trial court’s complex task of evaluating the facts and circumstances of each case; a task that is necessary to determine the best interest of the children.

The Court of Appeals further noted that the trial court painstakingly considered multiple factors before reaching its conclusion.  The trial court candidly and repeatedly acknowledged that the parents were unable to communicate, but was concerned about the children’s need to stay involved with both parents.  The trial court concluded that it was necessary to establish a strict set of rules about who does what and when.  In establishing this arrangement, the trial court determined that joint custody with tie-breaking authority would serve the best interest of the children. Each parent would be required to consult with one another about the major issues in the children’s lives and only when an impasse occurred could the parent with the tie-breaker authority make a final decision.  Father had tie-breaking authority with regard to certain issues, and Mother had tie-breaking authority with regard to other issues.

With the holding in the Santo case, we understand that while no one should ever discourage effective communication between parents, there are many alternatives that courts may pursue to serve the best interests of the child.