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  • Laurie M. Wasserman

Divorced Parents Are Allowed Joint Legal Custody, Despite Communication Issues

Custody laws have taken a revolutionary turn this summer. On July 11, 2016, just a few weeks after issuing its landmark decision on de facto parents in custody cases, the Court of Appeals issued an opinion on tie-breaking authority in joint legal custody cases. In deciding Santo v. Santo, the appellate court held that even if the parents cannot communicate effectively, an award of joint legal custody is still permissible. And, when awarding joint legal custody to parents who cannot communicate, the Court is within its legal authority to include tie-breaking provisions in the event of a disagreement.

So what does this mean?

In Maryland, the Court has the authority to award “legal” custody and “physical” custody to parents. “Legal custody” carries the rights and obligations to make long range decisions that significantly affect a child’s life, such as education or religious training. This differs from “physical custody,” which is the right and obligation to provide a home for the child and make daily decisions as necessary while the child is in that parent’s care and control. A Court can award “joint” legal custody and give both parents an equal voice in making long range decisions, so that neither parent’s rights are superior to the other. Alternatively, a Court can award “sole” legal custody, and give one parent complete authority to make the long range decisions.

Maryland case law references more than 20 factors that the Court must consider in any child custody case. The appellate courts have said that most important factor in deciding to award joint legal custody is the “capacity of the parents to communicate and reach shared decisions affecting the child’s welfare.” The best evidence of the capacity to communicate is the past conduct of the parties. In Santo v. Santo, the parents had a terrible record of communicating. However, the appellate court declined to say that, a failure to communicate effectively is an automatic bar to an award of joint legal custody.

The trial judge in Santo v. Santo determined that joint custody was appropriate in light of all of the custody factors it considered. And, even if the parents could not communicate or cooperate well, joint legal custody was appropriate so both parents could stay involved with their children. The trial judge’s solution was to implement tie-breaking authority to one parent, so decisions could be made in the event of a disagreement. The tie-breaking authority did not preclude a thoughtful discussion on the issues; rather, it was a way to resolve the dispute by one parent making the decision. In Santo v. Santo, the Court determined that the father has the authority to break the tie in disputes involving education, religion, and medical issues, while the mother was designated to break the tie in disputes involving the selection of the children’s therapist.

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