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CHILD CUSTODY the Taylor v Taylor - Factors
Maryland Courts follow the facts outlined in this case to determine joint legal and shared physical custody
Capacity of the Parents to Communicate and to Reach Shared Decisions Affecting the Child's Welfare. This is clearly the most important factor in the determination of whether an award of joint legal custody is appropriate, and is relevant as well to a consideration of shared physical custody. Rarely, if ever, should joint legal custody be awarded in the absence of a record of mature conduct on the part of the parents evidencing an ability to effectively communicate with each other concerning the best interest of the child, and then only when it is possible to make a finding of a strong potential for such conduct in the future.
With few exceptions, courts and commentators agree that joint custody is a viable option only for parents who are able and willing to cooperate with one another in making decisions for their child.
When the evidence discloses
severely embittered parents and a relationship marked by dispute, acrimony, and
a failure of rational communication, there is nothing to be gained and much to
be lost by conditioning the making of decisions affecting the child's welfare
upon the mutual agreement of the parties. Even in the absence of bitterness or
inability to communicate, if the evidence discloses the parents do not share
parenting values, and each insists on adhering to irreconcilable theories of
child-rearing, joint legal custody is not appropriate.The
parents need not agree on every aspect of parenting, but their views should not
be so widely divergent or so inflexibly maintained as to forecast the
probability of continuing disagreement on important matters.
The Courts will examine the sense of respect for one
another as parents, despite the disappointment in each other as marriage
partners. The fact that each can appreciated the value of the other to the
child, and is sensitive to the possible loss of a parent-child relationship.
There must be a demonstrated capacity to tolerate the minor differences that
existed and to distinguish the important from the unimportant ones. The parents
should be able to relinquish control and not interfere in the other parent's
relationship with the child. They should each be personally flexible and able to
accommodate to the needs of the arrangement, the child, and even to the other
parent. It was important that each parent had a sense of self-esteem as a parent
in his or her own right in order to maintain the balance in the co-parental
relationship.
Ordinarily the best evidence of compatibility with this
criterion will be the past conduct or “track
record” of the parties. We recognize, however, that the tensions of separation
and litigation will sometimes produce bitterness and lack of ability to
cooperate or agree. The trial judge will have to evaluate whether this is a
temporary condition, very likely to abate upon resolution of the issues, or
whether it is more permanent in nature. Only where the evidence is strong in
support of a finding of the existence of a significant potential for compliance
with this criterion should joint legal custody be granted. Blind hope that a
joint custody agreement will succeed, or that forcing the responsibility of
joint decision-making upon the warring parents will bring peace, is not
acceptable. In the unusual case where the trial judge concludes that joint legal
custody is appropriate notwithstanding the absence of a “track record” of
willingness and ability on the part of the parents to cooperate in making
decisions dealing with the child's welfare, the trial judge must articulate
fully the reasons that support that conclusion.
Willingness of Parents to Share
Custody. Generally, the parents should be willing to undertake
joint custody or it should not be ordered. We are asked by Appellant, and by the
Women's Legal Defense Fund as amicus curiae, to hold that a trial judge may
never order joint legal custody over the objection of one parent. They argue,
with some force, that unwillingness on the part of one parent to share custody
inevitably presages intransigence or inability to cooperate in making decisions
affecting the welfare of the child. While we agree that the absence of an
express willingness on the part of the parents to accept a joint custody
arrangement is a strong indicator that joint legal custody is contraindicated,
we are unwilling to fashion a hard and fast rule that would have the effect of
granting to either parent veto power over the possibility of a joint custody
award. A caring parent, believing that sole custody is in the best interest of
the child, may forcefully advance that position throughout the litigation but be
willing and able to fully participate in a joint custody arrangement if that is
the considered decision of the court.
Fitness of Parents. The psychological and physical capabilities
of both parents must be considered, although the determination may vary
depending upon whether a parent is being evaluated for fitness for legal custody
or for physical custody. A parent may be fit for one type of custody but not the
other, or neither, or both.
Relationship Established Between the Child and Each Parent. When
both parents are seen by the child as a source of security and love, there is a
favorable climate for joint custody. On the other hand, joint custody may be
inappropriate when opposed by the child, or when there are indications that the
psychological or emotional needs of the child would suffer under a joint custody
arrangement.
Preference of the Child. The reasonable preference of a child of suitable age and discretion should be considered. In addition to being sensitive to the possible presence of the “lollipop” or “rescue” syndromes, the trial judge must also recognize that children often experience a strong desire to see separated parents reunited, and this motivation may produce an unrealistic preference for joint custody.
The so-called “lollipop syndrome” relates to the situation where one parent in a custody battle may shower the child with gifts and pleasant times, and impose no discipline in order to win the child's preference. The “rescue syndrome” relates to the expression of preference by a child for the parent perceived by the child to be the “weaker” of the two, in the belief that the stronger parent will survive in any event, but the weaker parent needs the child.
Potential Disruption
of Child's Social and School Life.
Joint physical custody may seriously disrupt the social and school life of a
child when each parent has the child for half the year, and the homes are not in
close proximity to one another. In such cases the amount of time each parent has
physical custody may be adjusted without interfering with the concept of
continued joint custody.
Geographic Proximity of Parental Homes. Parental homes within the same school district offer certain advantages in a joint custody situation. The child may enjoy joint physical custody without changing schools or being required to constantly change a circle of friends, and the parents may find proximity a benefit in discussing the decisions to be made concerning the child. However, distance is not a bar, and when the distance between homes is great, a joint custody arrangement may offer the only practical way to preserve to the child a meaningful relationship with each parent. Depending upon the age and emotional maturity of the child, similarity of the respective home environments may be desired, or exposure to dissimilar environments, cultures and opportunities for learning may be indicated.
Demands of Parental Employment.
In some situations, joint physical custody will be appropriate only if the work
hours of the parents are different, or there is flexibility in the demands of
the employment of each.
Age and Number of
Children. The factor of age obviously interrelates with other
factors already discussed. The number of children involved may pose practical
difficulties to a joint custody arrangement, but on the other hand may be
helpful to both parents in bringing about a sharing of the pressures of single
family parenting of a number of children. In rare cases, split
custody may be
preferred over sole or joint custody.
Sincerity of Parents' Request.
A number of interested observers have opposed the concept of joint custody
absent mutual agreement on the ground that one spouse may interpose a demand for
joint custody solely to gain bargaining
leverage over the other in extracting favorable alimony, child support or
property concessions. Drawing upon the reasoning of King Solomon writers have
suggested that a parent truly interested in the welfare of a child will give up
almost anything to protect the child, and thus the threat of enforced joint
custody can be used to extract unwarranted concessions. While the remedy they
suggest-denial of joint custody in the absence of parental agreement-is
unnecessarily restrictive, we acknowledge the legitimacy of these concerns and
highlight the necessity to carefully examine the motives and sincerity of each
parent.
Financial Status of
the Parents.
Joint physical custody imposes financial burdens upon the parents because of the
necessity of maintaining two homes for the child, with separate furnishings and
often separate toys, equipment, and clothing.
Impact on State or Federal Assistance.
Aid to families with dependent children and eligibility for medical assistance
may be affected by the award of joint custody. The necessary showing of
“absence” of a parent may be challenged when there is an award of joint custody
that includes shared physical custody.
Although
the primary focus is properly upon the best interest of the child, it is also
appropriate to consider the salutary effect that joint custody may have on the
parents, not only because their feelings and interests are worthy of
consideration, but also because their improved self-image as parents is likely
to redound to the ultimate benefit of the child.
Other Factors. The enumeration of factors appropriate for consideration in a joint custody case is not intended to be all-inclusive, and a trial judge should consider all other circumstances that reasonably relate to the issue. The resolution of a custody dispute continues to be one of the most difficult and demanding tasks of a trial judge. It requires thorough consideration of multiple and varied circumstances, full knowledge of the available options, including the positive and negative aspects of various custodial arrangements, and a careful recitation of the facts and conclusions that support the solution ultimately selected.