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Md. court: Communication not a prerequisite for joint legal custody

A trial court can award joint legal custody to two parents even if they are found to be nearly incapable of communicating and reaching shared decisions about their children, Maryland’s top court has ruled.

Judge Sally D. Adkins , Court of Special Appeals. (Submitted photo)

Judge Sally D. Adkins , Court of Special Appeals. (Submitted photo)

The Court of Appeals also found a trial court’s use of tiebreaking provisions granting one parent the final authority to make a decision affecting the child when both parents cannot agree to be an acceptable part of the joint custody arrangement.

Rather than allowing the parent with tiebreaking power to assume “de facto sole legal custody,” Judge Sally D. Adkins wrote for the court, the provisions instead ensure each parent has a say in the decision-making process by requiring both parties to make a “genuine effort” to communicate.

“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,” Adkins wrote. “Such an award has the salutary effect of empowering both parents to participate in significant matters affecting their children. Because this arrangement requires both parties to attempt to make decisions together, it is a form of joint custody.”

The ruling redefines joint legal custody by endorsing tiebreaker provisions, which essentially eliminate the requirement that parents make decisions for their children together and assign “separate spheres of decision-making,” according to James S. Maxwell, who represented the appellant, Adam Santo.

“I think this is a tremendously important custody decision,” said Maxwell, of Maxwell, Barke & Zuckerman LLC. “It’s not clear from the opinion that it was intended to make earthshaking changes in custody law, but I believe it did. …We took the position in this case that a tiebreaker authority coupled with a joint legal custody agreement involving parties who can’t talk to each other or make decisions together is the same as sole custody.”

Effective communication

When Adam and Grace Santo divorced in 2011, they were granted joint legal custody of their two sons, according to the opinion. After the Santos filed additional motions challenging the order, the custody order was modified in 2013 to provide for the use of a parenting coordinator.

In 2014, Adam Santo sought sole legal custody of his sons so that “the children [would] not remain in a combat zone forever,” the opinion states, but a Montgomery County Circuit Court judge denied his motion after a three-day hearing, preserving the joint custody agreement instead.

After the Court of Special Appeals upheld the lower court ruling, Santo appealed to the state’s top court, arguing that an award of joint custody requires the parents be able to effectively communicate and make parenting decisions together in the future.

Grace Santo, on the other hand, argued that effective communication is just one of the “nonexclusive factors” that the court should weigh in a custody dispute.

The Court of Appeals agreed with Grace Santo, finding that the unique and subjective nature of child custody cases prevents the court from applying a set algorithm or formula to determine the appropriate legal custody award.

“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,” Adkins wrote. “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.”

Tiebreak provisions

Adam Santo also argued against the custody award’s tiebreak provisions, which allowed him to have the final say in matters pertaining to educational, religious and medical issues and allowed Grace Santo to make the final call in selecting a therapist for the boys, in the event that the two failed to come to an agreement.

The court disagreed with his argument that the provisions would promote conflict or would simply not work, finding instead that they have served as “pragmatic solutions” to the problem of parents failing to make timely decisions for their children’s benefit.

While Santo also argued that the provisions were illegal because the statute only provides for an award of sole or joint custody — not “hybrids of the two” — the court found that even with the tiebreaking provisions, the Santos’ custody award still fell under the umbrella of joint legal custody.

“In a joint legal custody arrangement with tie-breaking provisions, the parents are ordered to try to decide together matters affecting their children,” Adkins wrote. “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.”

In a concurring opinion, Judge Shirley M. Watts expressed concern that the majority did not explicitly include the caveat that an award of joint legal custody to parents who are unable to communicate with one another should be a rare occurrence. Retired Judge Lynne A. Battaglia, who sat by special assignment, joined Watts’ opinion.

John S. Weaver, a Rockville solo practitioner who represented Grace Santo, was out of the office and unavailable to comment on the ruling on Thursday.

The case is Adam Santo v. Grace Santo, No. 89, September Term 2015.