Please ensure Javascript is enabled for purposes of website accessibility

Md. appellate court gives father another chance at custody

Judge failed to use 'independent judgment"

A Maryland appeals court has revived a father’s challenge to a judge’s award of primary physical custody to the child’s mother, saying the jurist was wrong to have simply approved a family magistrate’s recommendation regarding custody after the father objected.

Judges must exercise their “independent judgment” in reviewing a parent’s “exceptions” and not merely adopt a magistrate’s custody report, the Court of Special Appeals held in its unreported opinion Tuesday. Judges must explain the bases for their decisions even if they ultimately echo those of the magistrate, the intermediate appellate court stated in its 3-0 decision.

“This is particularly the case here … where the evidence is sufficient to support an award of custody to either parent,” Judge Michele D. Hotten wrote for the court. “The record does not demonstrate that either appellant [father] or appellee [mother] were not fit to have physical custody of minor child A.”

Kent Way and Amanda Whealton, who never married, agreed in 2014 to joint legal custody of their then-1-year-old child, with the father having visits on Mondays, Tuesdays and Thursdays and overnight visitation every other weekend. The parents also set a detailed visitation schedule for birthdays, Christmas, Thanksgiving and the Fourth of July, according to Hotten’s opinion.

However, the father and mother battled in Baltimore County Circuit Court as each sought physical custody of their child.

A magistrate recommended in a findings-of-fact report that “the best interests of the minor child [are] to be in the primary physical legal custody of the mother.”

Way, through counsel, filed exceptions in which he alleged the magistrate’s report contained errors and omissions and failed to articulate the reason for the recommendation.

Baltimore County Circuit Judge Nancy Purpura held a hearing on Way’s exceptions in August 2014. Purpura, in a subsequent opinion, denied the exceptions, saying the magistrate’s findings and recommendation were not clearly erroneous.

Way sought review by the Court of Special Appeals, which found the judge’s findings to have been inappropriately deferential to the magistrate’s challenged findings and recommendation.

“Exceptions to the recommendations of a [magistrate] warrant an independent consideration by the trial court,” Hotten wrote, quoting from the Court of Special Appeals’ 1997 decision in Kierein v. Kierein. “The ultimate conclusions and recommendations of the [magistrate] are not simply to be tested against the clearly erroneous standard, and if found to be supported by the evidence of record, automatically accepted.”

As an unreported opinion, the Court of Special Appeals’ decision carries no precedential weight beyond the specific case. The court’s holding can be appealed to the Court of Appeals.

‘Really strange’

Whealton’s attorney, Jeffrey H. Kreshtool, said Wednesday that he is reviewing the opinion and no decision has been reached regarding an appeal to Maryland’s top court. Kreshtool is with Kreshtool & Kreshtool P.A. in Owings Mills.

Way’s attorney, Tatarsha D. Harris, said the case was “really strange” as far as child custody cases go.

“These parties got along very well; they were able to co-parent,” said Harris, a Columbia solo practitioner. “They just could not come to agreement on a custodial arrangement.”

Each parent’s evident ability to care for the child made an explanation for the judge’s custody decision even more important, she added.

“There really was no clear indication why preference was given to mom over dad,” Harris said. “When it comes to the best interest of the child, you have to explain why.”

Hotten was joined in the opinion by Judges Patrick L. Woodward and J. Frederick Sharer, a retired jurist sitting by special assignment.

The case is Kent Way v. Amanda Whealton, No. 1693, September Term 2014.