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Santo v. Santo

Court of Appeals of Maryland

July 11, 2016


          Argued: May 5, 2016

         Circuit Court for Montgomery County Case No.: 87541

          Barbera, C.J. Greene Adkins McDonald Watts Hotten Battaglia, Lynne A. (Retired, Specially Assigned), JJ.


          ADKINS, J.

         In Taylor v. Taylor, 306 Md. 290, 293 (1986), we decided that an award of joint custody was a permissible exercise of a trial court's general equity powers. Notably, we also explained in Taylor that the most important factor for a court to consider before awarding joint custody is the capacity of the parents to communicate and to reach shared decisions affecting a child's welfare. Id. at 304. Today we address whether a court abused its discretion in awarding joint custody in spite of evidence that, to put it mildly, the parents could not communicate and reach shared decisions for their two children. As a related matter-one not addressed explicitly in Taylor-we consider the propriety of the use of provisions in joint custody awards that grant one parent the authority to make a decision about a matter affecting the child when the parents cannot agree. We call these tie-breaking provisions.


         Adam Santo ("Father") and Grace Santo ("Mother") married in 2000 and divorced in 2011. They have two sons, who were eight and five years old, respectively, at the time of the divorce. Following a 2011 order of joint legal custody, the Santos renewed the battle over their children by filing more motions. Custody was modified in 2013 to, among other things, facilitate joint custody through the use of a parenting coordinator. Several other motions are indicative of their ongoing struggle.

         The precise motion that led to the question we review today was Father's 2014 motion to modify custody. Therein Father sought sole custody of his sons so that, he maintains, "the children will not remain in a combat zone forever." Following a three-day hearing, the Circuit Court for Montgomery County denied Father's motion and preserved a joint custody arrangement. We shall discuss the court's findings and the details of that arrangement infra, particularly the tie-breaking provisions awarded to each parent.

         Father noted a timely appeal, and the Court of Special Appeals affirmed the Circuit Court's decision in an unreported opinion.

         Father filed a Petition for Writ of Certiorari to this Court, which we granted[1]:

Whether the trial court abused its discretion in ordering joint custody in light of Taylor v. Taylor, 306 Md. 290 (1986)?

         Because we answer no, we shall affirm the judgment of the Court of Special Appeals.


         We review a trial court's custody determination for abuse of discretion. Petrini v. Petrini, 336 Md. 453, 470 (1994). This standard of review accounts for the trial court's unique "opportunity to observe the demeanor and the credibility of the parties and the witnesses." Id.

         Though a deferential standard, abuse of discretion may arise when "'no reasonable person would take the view adopted by the [trial] court' or when the court acts 'without reference to any guiding rules or principles.'" In re Adoption/Guardianship No. 3598, 347 Md. 295, 312 (1997) (internal citations omitted). Such an abuse may also occur when the court's ruling is "'clearly against the logic and effect of facts and inferences before the court' or when the ruling is 'violative of fact and logic.'" Id. (internal citations omitted). Put simply, we will not reverse the trial court unless its decision is "'well removed from any center mark imagined by the reviewing court.'" Id. at 313 (citation omitted).

         The light that guides the trial court in its determination, and in our review, is "the best interest of the child standard, " which "is always determinative in child custody disputes." Ross v. Hoffman, 280 Md. 172, 178 (1977).


         Father avers that the Circuit Court erred because it did not follow the "sine qua non for an award of joint legal custody" as established in Taylor v. Taylor, 306 Md. 290 (1986). In his view, an award of joint legal custody requires that the parents effectively communicate or will be capable of making parenting decisions together in the future. The record and the Circuit Court's findings, Father contends, reflect a tale of "parties [who] have been and remain at war with one another." He thus maintains that it was an abuse of discretion for the Circuit Court to have granted an award of joint custody to parents whom it knew could not communicate effectively.

         Mother disagrees, and reads Taylor as merely setting forth "nonexclusive factors" for a court to apply in a custody dispute. Mother maintains that Taylor requires the court to consider "all factors and options available" to determine "what is in the best interest of the children." In Mother's view, the Circuit Court did just that-applied the relevant factors, considered options, and made a decision for the children's best interests.

         Taylor v. Taylor

         We begin our analysis of Taylor by reviewing the Court's explication of legal and physical custody, and joint legal and joint physical custody-terms important to our discussion. "Legal custody carries with it the right and obligation to make long range decisions" that significantly affect a child's life, such as education or religious training. Taylor, 306 Md. at 296. "Physical custody, on the other hand, means the right and obligation to provide a home for the child and to make" daily decisions as necessary while the child is under that parent's care and control. Id.

         In joint legal custody, the Taylor Court explained, "both parents have an equal voice in making [long range] decisions, and neither parent's rights are superior to the other." Id. In joint physical custody, the parents will share or divide custody of the child, but not necessarily "on a 50/50 basis." Id. at 297. With respect to a circuit court's authority in child custody cases, "the power of the court is very broad so that it may accomplish the paramount purpose of securing the welfare and promoting the best interest of the child." Id. at 301–02. To assist trial courts "in determining whether joint custody is appropriate, " the Taylor Court offered up "the major factors" to consider. Id. at 303.[2]

         To be sure, the Taylor Court saw "the most important factor" in deciding whether to award joint legal custody as the "capacity of the parents to communicate and to reach shared decisions affecting the child's welfare."[3] Id. at 304. As it explained, "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" parents who are "severely embittered" and whose "relationship [is] marked by dispute, acrimony, and a failure of rational communication." Id. at 305.

         In other words, Taylor stands for the proposition that effective parental communication is weighty in a joint legal custody situation because, under such circumstances, parents are charged with making important decisions together that affect a child's future. If parents cannot make those decisions together because, for example, they are unable to put aside their bitterness for one another, then the child's future could be compromised.

         To further guide trial courts in evaluating parental communication, the Taylor Court explained that "the best evidence" a court should look for is "past conduct or [a] 'track record' of the parties." Id. at 307. "Rarely, if ever, " is a joint legal custody award permissible, the Court stated, absent such conduct, "and then only when it is possible to make a finding of a strong potential for such conduct in the future." Id. at 304. In the latter circumstance, the Court said, "the trial judge must articulate fully the reasons that support that conclusion." Id. at 307.

         In asking us to hold that joint legal custody "should be awarded only if a custody court" concludes that parents "are or likely will be capable of communicating and reaching joint (i.e., shared) parenting decisions, " Father would have us impose an inflexible template on equity courts making child custody decisions. (Emphasis added.) But, as the Taylor Court recognized, "[f]ormula[s] or computer solutions in child custody matters are impossible because of the unique character of each case, and the subjective nature of the evaluations and decisions that must be made." Id. at 303. To elevate effective parental communication so that it becomes a prerequisite to a joint custody award would undermine the trial court's complex and holistic task. On this point, Taylor is and remains vitally instructive:

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.

Id. at 311.

         Courts in other jurisdictions that, like Maryland, have no applicable statutory factors, concur that no one factor serves as a prerequisite to a custody award. See, e.g., Clark v. Reiss, 831 S.W.2d 622, 624 (Ark. Ct. App. 1992) ("The prime concern and controlling factor is the best interest of the child, and the court in its sound discretion will look into the peculiar circumstances of each case and act as the welfare of the child appears to require."); Hamby v. Hamby, 102 So.3d 334, 337 (Miss. Ct. App. 2012) ("The Albright [v. Albright, 437 So.2d 1003 (Miss. 1983)] factors are a guide for chancellors in weighing the facts to determine the child's best interest.") (citation and internal quotation marks omitted); Eschbach v. Eschbach, 436 N.E.2d 1260, 1263 (N.Y. 1982) ("'[N]o agreement of the parties can bind the court to a disposition other than that which a weighing of all the factors involved shows to be in the child's best interests.'") (citation omitted); Hall v. Hall, 655 S.E.2d 901, 905 ( N.C. Ct. App. 2008) ("'These findings may concern physical, mental, or financial fitness or any other factors brought out by the evidence and relevant to the issue of the welfare of the child.'") (citation omitted); Waters v. Magee, 877 A.2d 658, 664–65 (R.I. 2005) ("No one factor is determinative; rather, the trial justice should consider a combination of and an interaction among all the relevant factors.") (citation and internal quotation marks omitted); Scott v. Scott, 579 S.E.2d 620, 623 (S.C. 2003) ("[I]n making custody decisions 'the totality of the circumstances peculiar to each case constitutes the only scale upon which the ultimate decision can be weighed.'") (citation omitted); Hathaway v. Bergheim, 648 N.W.2d 349, 352 (S.D. 2002) ("These factors serve as guidelines and the trial court need not address all of them."); but see Foshee v. Foshee, 247 P.3d 1162, 1168–69 (Okla. 2010) ("[J]oint custody is not proper where the parents are unable to cooperate.").[4]

         Based on Taylor, and our review of other jurisdictions, we decline to hold as a matter of law that a court errs if it awards joint custody to parents who fail to communicate effectively with one another. As the Taylor Court cautioned, "none" of the major factors in a custody case "has talismanic qualities, and [] no single list of criteria will satisfy the demands of every case." Id. at 303 (emphasis added).

         Consistent with Taylor, we emphasize that a trial court should carefully set out the facts and conclusions that support the solution it ultimately reaches. To use words from Father's brief, no "robotic recitation that a custody award proposed by a custody court is in the 'child's best interest' serve[s] as a replacement for the serious consideration" of the facts and circumstances of each case. This is especially so in those cases where a court considers awarding joint legal custody to parents who cannot communicate effectively. In such cases, a court must articulate well the justifications for awarding joint custody.

         Tie-Breaking Provisions in Joint Legal Custody Awards

         Neither party disputes that this is a case in which a trial court awarded joint custody to parents who do not communicate well. As the Circuit Court explained, "[t]hese parents have essentially been at war with each other since 2010." Anticipating that these parents would not succeed in making all decisions on behalf of their children, the Circuit Court included tie-breaking provisions in the award so one parent would have the last word if they reached an impasse.

         Father argues that such provisions are inconsistent with Taylor and Md. Code (1984, 2012 Repl. Vol.), § 5-203(d) of the Family Law Article ("FL"). FL § 5-203(d) provides that "a court may award custody of a minor child to either parent or joint custody to both parents." FL § 5-203(d). Reading this section of the statute literally, Father avers that Maryland courts have two options-award sole or joint custody-but no option to create "hybrids of the two." He also fears that the use of tie-breaking provisions "has exponentially expanded" into "spheres of major importance." Finally, Father argues that, as a practical matter, tie-breaking provisions may promote conflict or simply be ineffective.[5]

         In Shenk v. Shenk, 159 Md.App. 548, 556 (2004) the Court of Special Appeals held that the trial court "acted within its legal authority" in awarding joint legal custody and designating one parent as the "tie[-]breaker" if the parents disagreed about a matter affecting their children.[6] The intermediate appellate court rejected the argument that Taylor precluded such an award by noting that Taylor "expressly acknowledged the existence of 'multiple forms' of joint custody" and rejected formulaic approaches to child custody matters as inconsistent with the "'unique character of each case.'" Id. at 560 (quoting 306 Md. at 303). In the intermediate appellate court's view, joint legal custody with tie-breaking authority in one parent was still joint custody. Id. ("The accommodation fashioned by the trial court does not transform the arrangement into something other than joint custody."). Finally, the Shenk court reasoned that the trial court's ability to fashion such an award was "in keeping with the 'broad and inherent power of an equity court to deal fully and completely with matters of child custody.'" Id. (quoting Taylor, 306 Md. at 301).

         Here we decide whether a custody award-comparable to that in Shenk-comports with the Taylor Court's formulation of joint legal custody. The Taylor Court defined joint legal custody as "both parents hav[ing] an equal voice in making [long range] decisions [of major significance concerning the child's life and welfare], and neither parent's rights [being] superior to the other." 306 Md. at 296. In a joint legal custody arrangement with tie-breaking provisions, the parents are ordered to try to decide together matters affecting their children. When, and only when the parties are at an impasse after deliberating in good faith does the tie-breaking provision permit one parent to make the final call. Because this arrangement requires a genuine effort by both parties to communicate, it ensures each has a voice in the decision-making process.

         To be sure, the Taylor Court's definition of joint legal custody places parents' decision-making rights on an equal footing; indeed, it characterizes their voices as being equal. See id. A delegation of final authority over a sphere of decisions to one parent has the real consequence of tilting power to the one granted such authority.

         But such an award is still consonant with the core concept of joint custody because the parents must try to work together to decide issues affecting their children. See Ronny M. v. Nanette H., 303 P.3d 392, 405 (Alaska 2013) ("The court's approach [awarding joint legal custody with final decision-making authority to mother] is reasonably intended to encourage both parents to communicate and attempt to make decisions about their children . . . ."). We require that the tie-breaker parent cannot make the final call until after weighing in good faith the ideas the other parent has expressed regarding their children. Cf. State on behalf of Maddox S. v. Matthew E., 873 N.W.2d 208, 219 (Neb. Ct. App. 2016) ("We also point out that the court maintained the goal of 'mutual agreement' between the parties . . . .; only now, the final say as to certain major issues rests with the designated parent if they cannot otherwise agree."). Such an award has the salutary effect of empowering both parents to participate in significant matters affecting their children.[7] See Shea v. Metcalf, 712 A.2d 887, 891 (Vt. 1998) ("By avoiding an 'all or nothing approach, ' the order keeps both parents in the role of active parenting, takes full advantage of their individual strengths, and avoids awarding either parent responsibility for which he or she is not suited."). Because this arrangement requires both parties to attempt to make decisions together, it is a form of joint custody. See Taylor, 306 Md. at 303 ("The availability of joint custody, in any of its multiple forms, is but another option available to the trial judge.").[8]

         The requirement of good faith communication between the parents helps to ensure the parent with tie-breaking authority does not abuse the privilege of being a final decision-maker. And a court has the means to sanction a breach of good faith. In Downing v. Perry, 123 A.3d 474, 483–85 (D.C. 2015), the District of Columbia Court of Appeals affirmed a trial court order of joint legal custody that transferred final decision-making authority from the father to a neutral third party because the father had abused this privilege. Among other things, the Downing court emphasized the trial court's finding that the father had "rigid[ly] exercise[d]" tie-breaking authority granted him under a prior agreement based on a "patterned negative response [to the mother's] suggestions, rather than making decisions in the child's best interest." Id. at 484. ...

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