Child custody disputes are perhaps the only court proceedings that are more emotionally draining than a contested divorce. Tempers flare and distrust abounds as the parents desperately fight for custody. Under these circumstances, only an experienced child custody lawyer is able to provide an objective outlook and protect a parent’s access to their child.

This article analyzes the case law on some of the more common issues that often arise in child custody disputes. Over the years, our firm has successfully handled these and other issues for our family law clients. While the following information provides greater insight into the law surrounding child custody than is possessed by the average lay person, there is no substitute for being represented by a competent attorney.

Best Interests of the Child

A child custody lawyer recognizes that “it is invariably held in custody cases that the best interests of a minor child are the overriding consideration in determining the awarding of custody.” Thumma v. Hartsook, 239 Md. 38, 42 (1965). Some states attempt to define the “best interests of the child” via statute, while other states rely exclusively on the courts to clarify what the standard encompasses. Regardless of a given state’s approach, the courts have broad discretion to consider practically anything that may be related to a child’s wellbeing.

For example, in Michigan, the best interests of the child standard is defined by a statute, Mich. Comp. Laws § 722.23, which provides:

Sec. 3. As used in this act, “best interests of the child” means the sum total of the following factors to be considered, evaluated, and determined by the court:

• (a) The love, affection, and other emotional ties existing between the parties involved and the child.
• (b) The capacity and disposition of the parties involved to give the child love, affection, and guidance and to continue the education and raising of the child in his or her religion or creed, if any.
• (c) The capacity and disposition of the parties involved to provide the child with food, clothing, medical care or other remedial care recognized and permitted under the laws of this state in place of medical care, and other material needs.
• (d) The length of time the child has lived in a stable, satisfactory environment, and the desirability of maintaining continuity.
• (e) The permanence, as a family unit, of the existing or proposed custodial home or homes.
• (f) The moral fitness of the parties involved.
• (g) The mental and physical health of the parties involved.
• (h) The home, school, and community record of the child.
• (i) The reasonable preference of the child, if the court considers the child to be of sufficient age to express preference.
• (j) The willingness and ability of each of the parties to facilitate and encourage a close and continuing parent-child relationship between the child and the other parent or the child and the parents. A court may not consider negatively for the purposes of this factor any reasonable action taken by a parent to protect a child or that parent from sexual assault or domestic violence by the child’s other parent.
• (k) Domestic violence, regardless of whether the violence was directed against or witnessed by the child.
• (l) Any other factor considered by the court to be relevant to a particular child custody dispute.

Clearly, the statute is lengthy and detailed. Nevertheless, even though it mentions nothing about substance abuse, the Michigan Court of Appeals has held that substance abuse may justify completely terminating a parent’s custody rights. In re Gonzales/Martinez, 310 Mich. App. 426, 435 (2015). The point is that even detailed statutes that attempt to define the best interests of the child standard are vague and allow the court to consider anything it deems related to the child’s health, safety and wellfare.

States that rely on case law to define what constitutes the best interests of the child are no different. Maryland is illustrative. The state’s highest court has attempted to define the scope of the best interests standard as follows:

For the purpose of ascertaining what is likely to be in the best interests and welfare of a child a court may properly consider, among other things, the fitness of the persons seeking custody, the adaptability of the prospective custodian to the task, the age, sex and health of the child, the physical, spiritual and moral well-being of the child, the environment and surroundings in which the child will be reared, the influences likely to be exerted on the child, and, if he or she is old enough to make a rational choice, the preference of the child. 2 Nelson, Divorce and Annulment, § 15.01 (2d ed. 1945). It stands to reason that the fitness of a person to have custody is of vital importance. The paramount consideration, however, is the general overall well-being of the child.

Hild v. Hild, 221 Md. 349, 357 (1960). The passage is so vague that a Maryland child custody case may hinge on practically anything that affects the health, safety and welfare of the child. This is why it is a risky gamble to litigate a custody matter without the aid of a competent attorney.

Experienced child custody lawyers have witnessed firsthand the results of countless family law cases over periods of many years. Such an advocate has acquired the ability to narrow the focus to the facts and evidence that a judge is most likely to consider persuasive. Given the seemingly limitless scope of the best interests of the child standard, such insight is invaluable in the fight to protect a parent’s access to their children.

Material Change in Circumstances

In cases where a parent wishes to modify an existing custody order, the parent must, in addition to addressing the bests interests of the child, show that there has been a material change in circumstances. Nodeen v. Sigurdsson, 408 Md. 167, 175 (2009) (“[T]he the decision whether to modify is governed by the material change in circumstances and best interest standards.”). Similar to the best interests standard, the courts have defined a material change in circumstances broadly as “a change in circumstances that affects the welfare of the child.” Gillespie v. Gillespie, 206 Md. App. 146, 171 (2012). Our firm has extensively analyzed the pertinent case law in our article on what constitutes a material change in circumstances.

Parents Unable to Communicate Amicably

Seasoned lawyers in child custody cases will wisely advise their clients to make every effort to communicate reasonably and politely with the other parent. This is because, normally, when the parties are unable to communicate amicably, shared custody is not an option, and one party will receive both primary physical and sole legal custody. The case of Taylor v. Taylor, 306 Md. 290 (1986) is instructive. There, the trial court issued a custody order providing for shared physical and joint legal custody, even though there was “considerable hostility between these parents and an inability to effectively communicate directly with each other.” Id. at 312-13. Not surprisingly, the appellate court remanded the decision, and emphasized:

Capacity of the Parents to Communicate and to Reach Shared Decisions Affecting the Child’s Welfare. This is clearly the most important factor in the determination of whether an award of joint legal custody is appropriate, and is relevant as well to a consideration of shared physical custody. Rarely, if ever, should joint legal custody be awarded in the absence of a record of mature conduct on the part of the parents evidencing an ability to effectively communicate with each other concerning the best interest of the child, and then only when it is possible to make a finding of a strong potential for such conduct in the future.

Id. at 304. This is a wise policy for several reasons. When parties that clearly cannot communicate with each other are forced by the court system to be in constant contact regarding important life decisions for the child, those important decisions may never be promptly or properly made, and the stress and frustration among the parents under such circumstances will inevitably pour over onto the innocent child. Indeed, the Taylor court recognized, “When the evidence discloses severely embittered parents and a relationship marked by dispute, acrimony, and a failure of rational communication, 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 the parties.” Id. at 305.

Moreover, denying joint custody where the parties are unable to communicate actually has a tendency to encourage the parties to learn how to communicate effectively. This is because the best child custody lawyers know that, under such circumstances, one of the parties is almost guaranteed to lose crucial access to their child, and there is no telling which party will be denied the bulk of the custody. Although courts presiding over child custody disputes began favoring the mother in the early 1900s, this bias has faded significantly in recent years, and present day custody decisions have become increasingly unpredictable. Accordingly, a competent lawyer handling the child custody case will, out of an abundance of caution, advise their client to make every effort to put their resentment for the other parent aside, at least during conversations with the other parent concerning issues affecting the child.

Interestingly, despite the clear wisdom of this policy, which had proved effective for decades, Maryland’s highest court seemed to change course and allow for exceptions in the landmark 2016 decision of Santo v. Santo, 448 Md. 620 (2016). In that case, the court acknowledged that, “to put it mildly, the parents could not communicate and reach shared decisions for their two children.” Id. at 624. Nevertheless, the court affirmed the lower court’s decision to award joint custody. The court seemed to be persuaded by “the children’s need to stay involved with both parents.” Id. at 642-43. And the court felt optimistic about the chances of the arrangement ultimately working because the trial court imposed “a strict set of rules about who does what and when.” Id. at 643. Specifically, the father was awarded tie-breaking authority (meaning the ability to be the ultimate decision maker) on “education, religion, and medical issues” affecting the children, while the mother was granted tie-breaking authority with respect to the “selection of [a psychiatric] therapist” for the children. Id.

In sum, since the lower court imposed separate spheres of ultimate decision-making authority, stated that both parents had stable homes and good relationships with the children, and there was no evidence that either parent interfered with the other’s custodial access times, it was appropriate to award shared physical and joint legal custody, despite the fact that the parents were unable to cooperate at all, and despite the fact that their “unvarnished hatred of each other leads them to do and say things that are contrary to the welfare of the children.” Id. at 640-43.

The wisdom of the Santo decision is questionable. It does nothing to deter a parent from using the child as a pawn in an effort to selfishly cause pain to the other parent. Instead, the opinion only opens the door for the trial courts to increase the frequency of interactions between parents who cannot stand each other. While the children are able to be around each parent equally, they are also subject to the parents’ increased residual stress caused by the situation. Moreover, the opinion does nothing to provide any structure or guidance to the lower courts. The holding in Santo simply adds to the perception that child custody cases turn on the unfettered whims of a judge, at least so long as the judge utters something seemingly intelligent on the record. Especially in cases affecting a fundamental right, such as the ability to raise one’s child, the appellate courts should at least attempt to offer some concrete guidance to the trial courts, rather than promoting a policy of unfettered discretion.

A wiser approach would have been to simply hold that joint custody is not an option where the parents cannot communicate effectively. The court could have then promulgated a rule that, where the parties are unable to communicate, the parent displaying a greater willingness to try to communicate objectively and reasonably concerning the best interests of the child, and a lesser likelihood of disparaging the other parent in front of the child, should be awarded the lion’s share of custody, so long as they could provide a level of care and an environment for the child better than or comparable to the other parent’s level of care and environment. Rhetorically, all other things being equal, how is being primarily exposed to a more objective and reasonable influence not beneficial for a child’s development? Lastly, the court could have completed such a rule by holding that, if neither party showed any signs of civility, then the decision should turn on a balancing test factoring which parent is able to provide better care and a better environment for the child. Such an approach, in addition to simplifying matters for the lower courts, would absolutely compel the child custody advocate to advise their clients to put the child first, and make sincere efforts to work with the other parent concerning child-related issues.

Encouraging the Child to Refer to a Partner as Mother or Father

Another form of parental alienation concerns confusing the child by encouraging them to refer to the parent’s partner, fiancé or new spouse as mother or father. In McCready v. McCready, 323 Md. 476, 485 (1991), the mother did not discourage her child from referring to her fiancé as “daddy.” The father was offended, and filed a complaint for modification of custody. The trial court ruled in favor of the father, and awarded him primary custody. Id. at 479. The mother appealed the decision, but lost, as the appellate court noted that the mother exhibited worrisome “selfishness and immaturity” by allowing the child to refer to a non-biological parent as “daddy.” Id. at 484-85. After further denouncing the mother as “narcissistic,” the court upheld the award of primary custody to the biological father. Id. at 485-86. Accordingly, an attorney handling child custody cases should advise clients not to encourage the child to refer to a partner, fiancé or stepparent as mommy or daddy.

Many other states also view a parent’s failure to discourage a child from referring to a non-biological parent as mother or father as detrimental to the child’s relationship with their true biological mother or father. Evans v. McKinney, 440 S.W.3d 357, 360 (Ark. Ct. App. 2014) (awarding father primary custody where mother encouraged the child to call his stepfather “daddy”); Meyer v. Meyer, 173 Vt. 195, 200 (2001) (mother awarded primary custody where the father did not honor the mother’s request to discourage the children from referring to their stepmother as “mommy”); Dobbins v. Dobbins, 584 So.2d 1113, 1114 (Fla. Dist. Ct. App. 1991) (noting that the mother engaged in a “deliberate pattern of alienation” by allowing the children to refer to their stepfather as “daddy”); K–R–(S–)D– v. C–D–S–, 646 S.W.2d 428, 431-32 (Mo. Ct. App. 1983) (modifying custody in favor of the father where the mother, inter alia, encouraged the child to call the stepfather “daddy”).

These holdings show that the courts recognize that encouraging a child to refer to a non-biological parent as mother or father does nothing for the child, other than causing confusion (and perhaps self-esteem issues since it implies to the child that there is something fundamentally wrong with their heritage). A wise child custody lawyer knows to advise against such conduct.

One Parent Alienates the Other from the Child, or Interferes with the Other Parent’s Custody Rights

When both parents are fit and proper persons to have custody, one parent’s act of interfering with the custodial rights of the other negatively affects the best interests of the child. Wagner v. Wagner, 109 Md. App. 1 (1996); Bienefeld v. Bennett-White, 91 Md. App. 488 (1992); Shunk v. Walker, 87 Md. App. 389 (1991). Such conduct warrants an order granting more custodial rights to the non-offending parent. Wagner, 109 Md. App. at 33 (“[T]he presumption of continuity and stability in favor of the original custodial parent had been vitiated by Ms. Wagner’s attempts to discontinue Mr. Wagner’s visitation with Erika and her attempts at subterfuge.”). This is because “reasonable maximum exposure to each parent is presumed to be in the best interests of the child”, Boswell v. Boswell, 352 Md. 204, 214 (1998), and “the children’s ties to the [non-offending parent] would be threatened if the [offending parent] were given custody,” Bienefeld, 91 Md. App. at 502.

In Bienefeld, the parties in a divorce action attended a pendente lite hearing, and informed the domestic relations master that they had reached an agreement that gave the mother primary physical custody of the children. Id. at 494. Thereafter, the mother “attempted to restrict the children’s access to the father because of her view that the children’s upbringing should be exclusively Orthodox Jewish.” Id. at 495. After a trial on the merits, the circuit court awarded primary physical custody to the father. Id. The mother appealed. Id. at 496.

In reaching its decision, the appellate court initially dealt with the issue of whether the material change of circumstances standard applied. Id. at 499. In holding that it was appropriate for the circuit to consider whether there had been a material change in circumstances, the court, in a footnote, drew a distinction between a pendente lite order and an “agreement-based” custody order:

We note that we previously have held that there is no need for a party seeking custody to show a change of circumstances when the other party has custody by virtue of a pendente lite award of custody. Kerns v. Kerns, 59 Md. App. 87, 97, 474 A.2d 925 (1984). Kerns is inapposite to the case before us, however. Unlike in Kerns, the agreement-based custody order in the instant case, like the one in McCready, was not designated to be a pendente lite or temporary order.

Id. n.5. The court then analyzed whether the trial court correctly modified custody in favor of the father.

First, the court held that the mother’s attempts to interfere with the father’s visitation rights constituted a material change in circumstances:

In the case before us, there was sufficient evidence of changes occurring since the entry of the agreement-based custody order to justify the application of the best interests standard. For instance, the agreement-based order provided for equal visitation during the children’s spring vacation. Spring vacation coincided with Passover, and the mother, fearing that the children’s religious observances would be interrupted, sought to prevent the father from visiting the children during Passover. Thus, there was evidence that the parties had failed to cooperate with respect to the religion and education of the children and that the mother had attempted to prevent the father from visiting the children.

Id. at 500. The court then concluded that, in light of the mother’s attempts to interfere with the father’s visitation, awarding the father primary custody was in the best interests of the children because “the children’s ties to the father would be threatened if the mother were given custody.” Id. at 502.

In sum, attempts to interfere with a parent’s custodial rights constitutes a material change in circumstances that warrants a modification of custody in favor of the non-offending parent. Id.; Wagner, 109 Md. App. 1 (the custodial parent cut off communication with the non-custodial parent); Shunk, 87 Md. App. 389 (same). It is, therefore, imperative that child custody lawyers advise clients to never disparage the other parent within earshot of the child, or make it difficult for the other parent to exercise their custodial access rights.

Conclusion

Child custody cases are complex. The courts have broad and sweeping discretion to decide what custodial access schedule is in the best interests of the child. While the outcomes of custody matters may seem unpredictable, a child custody lawyer is familiar with the courts’ tendencies. For instance, a parent’s chances of protecting their custodial access rights increase as the parent communicates more cooperatively with the other parent. A parent’s chances of prevailing also increase to the extent the parent is able to provide proper care and an adequate living environment for the child. Parents who value their custody rights should never, under any circumstances, disparage the other parent within earshot of the child. Attempts to alienate the other parent from the child or interfere with their custody or visitation rights can quickly lead a court to diminish or outright terminate the offending parent’s custodial access rights.

This article provides only a glimpse into the law governing child custody matters. There are countless other issues and pitfalls that can make or break a parent’s case for time with their child. Our firm regularly provides successful counsel to our family law clients. We can help you protect your access to your child. Call us or fill out the contact form on this page to speak to an aggressive child custody lawyer today.

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