Argued: May 5, 2016
Court for Montgomery County Case No.: 87541
Barbera, C.J. Greene Adkins McDonald Watts Hotten Battaglia,
Lynne A. (Retired, Specially Assigned), JJ.
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
AND LEGAL PROCEEDINGS
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.
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.
noted a timely appeal, and the Court of Special Appeals
affirmed the Circuit Court's decision in an unreported
filed a Petition for Writ of Certiorari to this Court, which
Whether the trial court abused its discretion in ordering
joint custody in light of Taylor v. Taylor, 306 Md.
we answer no, we shall affirm the judgment of the Court of
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."
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).
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).
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
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.
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.
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.
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." 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.
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.
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.
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
Id. at 311.
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.").
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).
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
Provisions in Joint Legal Custody Awards
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.
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.
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. 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).
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
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
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. 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
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. ...