Did Maryland courts have the power to award joint custody of children in a divorce before the legislature passed a specific joint-custody law?

Plain-English summary

A member of the Maryland House of Delegates asked the Attorney General whether Maryland courts could award joint or "shared" custody of children in a divorce, at a time when the state's custody statute did not use the term "joint custody" at all. The opinion distinguished joint "legal" custody, where both parents share major decisions but only one parent has the child day-to-day, from joint "physical" custody, where the child actually splits time living with each parent, and used the term "joint custody" in this opinion to mean the latter. It concluded that Maryland's equity courts already had the inherent power to grant joint custody whenever doing so served a child's best interests, resting that conclusion on the state's custody statute, which made both parents "joint natural guardians" with equal rights and duties and gave courts broad discretion to secure the child's welfare, on Maryland cases that had approved arrangements splitting a child's time between parents without using the label "joint custody," and on a wave of decisions from other states reading similarly worded statutes to authorize joint custody awards. Even so, because no Maryland case had squarely used the term "joint custody" and one related statutory provision left some ambiguity about how a joint arrangement would affect a child's legal domicile, the opinion recommended that the General Assembly consider legislation expressly authorizing joint custody decrees, both to remove any doubt and to give courts clearer guidance on how to structure them.

Currency note

This opinion was issued in 1983. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

An editor's note appended to the opinion reports that the Court of Special Appeals directly confirmed this conclusion the following year, holding in Kerns v. Kerns, 59 Md. App. 87 (1984), that a Maryland equity court has authority to award joint custody whenever it serves the child's best interests, and that neither parent needs to have requested it. The statutory provisions this opinion analyzed, Article 72A, §1 and §1A, were later recodified without substantive change into the Family Law Article (§§5-203 and 5-204), and Maryland's custody law has continued to develop since 1983 and 1984. Verify the current Family Law Article and recent case law before relying on any specific custody rule described here.

Common questions

Could a Maryland judge in 1983 order that divorced parents split time with their kids, even without a specific joint custody law?
Yes, according to this opinion. It concluded that Maryland's custody statute, which made both parents "joint natural guardians" with equal rights and duties and directed courts to act in the child's best interests, gave equity courts the inherent authority to award joint custody, even though no Maryland statute used the term "joint custody" and no reported Maryland case had expressly labeled an award that way.

Did Maryland courts already have any track record of splitting custody between parents?
Yes, the opinion pointed to prior Maryland cases that had done exactly this without calling it "joint custody." In Andrews v. Andrews, the Court of Appeals gave a mother custody for two months a year and the father the rest; in Sartoph v. Sartoph, the Court of Special Appeals let a child split time between parents by school term and season, describing the arrangement as producing "a healthy emotionally well-adjusted child."

What made courts hesitate to award joint custody, even where it was legally allowed?
The opinion, drawing on cases from other states, described joint custody as best suited to relatively stable, amicable parents who could cooperate for the child's benefit, and noted that courts elsewhere considered factors like both parents' fitness, willingness to cooperate, financial capacity, geographic proximity, work schedules, and sometimes the child's own preference before ordering it.

Did the legislature end up passing a specific joint custody law after this opinion?
The opinion itself recommended that step, and its editor's note reports that the Court of Special Appeals confirmed the same conclusion directly in a 1984 case, Kerns v. Kerns, shortly after this opinion issued. This page does not track whether or when the General Assembly later added express statutory joint-custody provisions; check the current Family Law Article for the present-day framework.

Background and statutory framework

Article 72A, §1 of the Maryland Code (later recodified as Family Law §5-203) provided that "the father and mother are the joint natural guardians of their child under eighteen years of age" with "equal powers and duties," and that "neither parent has any right superior to the right of the other concerning the child's custody," while a separate provision (§1A, later Family Law §5-204) addressed a child's domicile when parents lived apart. The opinion read this "jointly and severally charged" language as establishing that both parents remained individually and jointly responsible for the child's welfare, supporting an equity court's implicit authority to select either or both parents as custodians in service of the child's best interests, the paramount standard the Court of Appeals had articulated in Stancill v. Stancill and Ross v. Hoffman. It found this reading reinforced by prior Maryland decisions splitting custody between parents in substance, even without using the "joint custody" label, including Andrews v. Andrews and Sartoph v. Sartoph.

Surveying other states with similarly worded statutes, the opinion relied heavily on the New Jersey Supreme Court's decision in Beck v. Beck, which found that language giving both parents "equal" rights and charging them "equally" with the child's care reflected "a legislative preference for custody decrees that allow both parents full and genuine involvement" and endorsed joint custody as an alternative to sole custody in appropriate cases, while declining to create any presumption favoring it given the fact-intensive nature of custody decisions. The opinion found a parallel line of New York decisions, including Perotti v. Perotti and Braiman v. Braiman, inferring the same authority from statutory language granting equal custodial rights and requiring courts to act in a child's best interests, and noted the Iowa Supreme Court's observation in In re Marriage of Burham that a newly enacted joint-custody statute there simply "placed its imprimatur" on authority courts already possessed. Drawing on these cases and on secondary literature (citing Miller, Joint Custody, 13 Family L.Q. 345 (1979)), the opinion identified recurring factors courts considered before ordering joint custody: both parents' fitness and capacity to care for the child, their ability to cooperate, mutual willingness (though not necessarily mutual request), financial resources, geographic proximity, work schedules, and sometimes the child's own preference. Because no Maryland case had used the specific term "joint custody" and the domicile provision in §1A left some statutory ambiguity, the opinion recommended, notwithstanding its conclusion that courts already had this power, that the General Assembly consider express legislation to remove doubt and give courts clearer guidance.

Citations

Statutes:

• Md. Code Art. 72A, §1 (later Family Law §5-203; joint natural guardianship of children)
• Md. Code Art. 72A, §1A (later Family Law §5-204; domicile of a child of separated parents)
• N.J. Stat. §9:2-4 (equal parental custodial rights)
• N.Y. Dom. Rel. Law §240 (court discretion over custody in the child's best interests)
• Mo. Ann. Stat. §452.375 (joint custody factors)
• Mich. Stat. Ann. §25.312 (joint custody factors)

Cases:

• Mayer v. Mayer, 376 A.2d 214 (N.J. Super. Ch. 1977), reversed on other grounds, 434 A.2d 614 (N.J. Super. A.D. 1981)
• Zinni v. Zinni, 238 A.2d 373 (R.I. 1968)
• Stancill v. Stancill, 286 Md. 530, 534 (1979)
• Sullivan v. Auslaender, 12 Md. App. 1, 3 (1971)
• Ross v. Hoffman, 280 Md. 172, 186 (1977)
• United States v. Wainer, 108 F.Supp. 386, 387-88 (N.D. Ill. 1952)
• Carter v. Carter, 156 Md. 500 (1929)
• Sartoph v. Sartoph, 31 Md. App. 58 (1976)
• Andrews v. Andrews, 242 Md. 143, 155 (1965)
• Barsallo v. Barsallo, 18 Md. App. 560, 570 (1973)
• Odette R. v. Douglas R., 399 N.Y.S.2d 93 (1977)
• Bazant v. Bazant, 439 N.Y.S.2d 521 (1981)
• Flanagan v. Flanagan, 247 P.2d 212 (Or. 1952)
• Wheeler v. Wheeler, 222 P.2d 400 (Wash. 1950)
• Travis v. Travis, 180 P.2d 310 (Kan. 1947)
• Davis v. Davis, 354 S.W.2d 526 (Mo. App. 1962)
• Beck v. Beck, 432 A.2d 63 (N.J. 1981)
• Perotti v. Perotti, 355 N.Y.S.2d 68 (1974)
• Braiman v. Braiman, 378 N.E.2d 1019, 1020 (N.Y. App. 1978)
• Dodd v. Dodd, 403 N.Y.S.2d 401, 403 (1978)
• Woicik v. Woicik, 321 N.Y.S.2d 5 (1971)
• In re Marriage of Burham, 283 N.W.2d 269, 272 (Iowa 1979)
• Lustig v. Lustig, 299 N.W.2d 375, 380-81 (Mich. App. 1980)
• Fago v. Fago, 250 S.W.2d 837 (Mo. App. 1952)
• Baer v. Baer, 51 S.W.2d 873 (Mo. App. 1932)
• Kerns v. Kerns, 59 Md. App. 87 (1984) (editor's note, post-dates the opinion)
• Taylor v. Taylor, 60 Md. App. 260 (1984) (editor's note, post-dates the opinion)

Source

• Landing page: https://oag.maryland.gov/resources-info/Pages/attorney-general%E2%80%99s-opinions.aspx
• Original PDF: https://oag.maryland.gov/resources-info/Documents/pdfs/Opinions/1983/Volume68_1983.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain, the linked PDF is authoritative.

DOMESTIC RELATIONS

Divorce, Child Custody, Joint Custody, Maryland Equity Courts Have Inherent Power to Grant Award of Joint Custody.

June 2, 1983

The Honorable Donald K. Hughes
Maryland House of Delegates

You have requested our opinion on the present ability of the Maryland courts, during divorce proceedings, to grant an award of joint or "shared" custody of the divorced couple's children.

For the reasons given below, it is our opinion that Maryland equity courts have the inherent power to grant an award of joint custody, in furtherance of each child's own best interests. Nevertheless, legislation to expressly authorize courts to pass joint custody decrees may be a useful addition to the statutory law of this State.*

• [Editor's Note: The statutory provisions upon which this Opinion relied have since been recodified, without substantive change, as part of the new Family Law Article ("FL" Article). Cross-references to the new codification have been added to the text in brackets.]

I
Joint Custody Defined

Courts recognize two basic versions of joint custody, that of joint "legal" custody and joint "physical" custody. Under joint legal custody, decisions about matters of major significance in the child's life are made by both parents, in consultation with each other; however, only one parent has physical custody of the child and, thus, is responsible for most day-to-day decisions concerning the child's welfare. Joint physical custody, on the other hand, involves both shared decision-making responsibility and a shared residence; here, the child lives with each parent on a split-time basis.

In this Opinion, we use the term "joint custody" to mean joint physical custody, the sharing of parental responsibility in both decision-making matters and in the provision of a home for the child.

In practice, there is wide variation in joint custody arrangements. Depending upon the resources, proximity, and needs of the parents and children, companionship of the child may be shared over periods of days, weeks, or months. In those jurisdictions that have expressly recognized joint custody as an alternative to sole custody, flexibility in terms of scheduling is integral to devising a solution that is sensitive, in each case, to the best interests of the child. Compare, e.g., Mayer v. Mayer, 376 A.2d 214 (N.J. Super. Ch. 1977), reversed on other grounds, 434 A.2d 614 (N.J. Super. A.D. 1981) (children in mother's custody, September through June; with father for July, August, one weekend per month, and certain vacations) with Zinni v. Zinni, 238 A.2d 373 (R.I. 1968) (child to reside with mother on weekends; with father during the week).

II
Maryland Law

Article 72A, §1 [FL §5-203] of the Maryland Code sets forth the general rule governing the relationship between parents and their children. It provides, in relevant part:

"The father and mother are the joint natural guardians of their child under eighteen years of age and are jointly and severally charged with its support, care, nurture, welfare and education. They shall have equal powers and duties, and neither parent has any right superior to the right of the other concerning the child's custody."

In a divorce proceeding, however, when resolving the issue of custody or guardianship of a child, the paramount concern of the equity court is to "secure the welfare and promote the child's best interest". Stancill v. Stancill, 286 Md. 530, 534 (1979) (emphasis added). See Sullivan v. Auslaender, 12 Md. App. 1, 3 (1971). In this regard, the ultimate decision as to

custody of the child is within the "sound discretion of the chancellor", based on the unique facts and circumstances of each case. Ross v. Hoffman, 280 Md. 172, 186 (1977).

Article 72A, §1 [FL §5-203(b)(1)] states that the father and mother are "jointly and severally charged" with their child's "care, nurture, [and] welfare", in other words, they are both individually and jointly responsible for their child's well-being. See generally United States v. Wainer, 108 F.Supp. 386, 387-88 (N.D. Ill. 1952); Black's Law Dictionary 751 (rev. 5th ed. 1979). Given the absence of statutory language to the contrary, it is our opinion that an equity court has implicit authority to select either or both parents as custodians, so as to best foster the child's welfare and interests. See Carter v. Carter, 156 Md. 500 (1929); Sartoph v. Sartoph, 31 Md. App. 58 (1976).1

The concept of joint custody is not unprecedented in Maryland case law. For example, in Andrews v. Andrews, 242 Md. 143, 155 (1965), the Court of Appeals modified the chancellor's decree so as to give "care, custody and control" of children to the mother for two months each year and to the father for the remaining period of time. See also Barsallo v. Barsallo, 18 Md. App. 560, 570 (1973). Similarly, in Sartoph v. Sartoph, 31 Md. App. 58 (1976), the Court of Special Appeals refused to disturb a custody arrangement under which the child stayed with the father during the summer and, during the school term, spent the weekdays with the mother and alternative weekends with the father. The Court stated: "Under this arrangement, Ronald has grown into a healthy emotionally well-adjusted child, who is doing well at home and at school." 31 Md. App. at 67. See also Carter v. Carter, 156 Md. 500 (1929).

1 We note that a portion of Article 72A, §1 [FL §5-203(c)] states: "Where the parents live apart, the court may award the guardianship of the child to either of them, but, in any custody proceeding, neither parent shall be given preference solely because of his or her sex." As discussed below in note 3 and accompanying text, similar statutory language has been judicially construed to authorize custody awards to both parents. Under this provision of Article 72A, §1, the court "may", but need not, award custody to either parent. We do not believe that such a provision, designed to permit a court, in its discretion, to deprive one or another parent of all right to custody, should be read to preclude a court, under appropriate circumstances, from approving an arrangement that instead is designed to preserve both parents' right to continued custody.

Awards of this kind, although not expressly characterized as "joint custody" in this State, have been recognized as such in other jurisdictions. See Mayer v. Mayer, 376 A.2d 214 (N.J. Super. Ch. 1977); Odette R. v. Douglas R., 399 N.Y.S.2d 93 (1977); Zinni v. Zinni, 238 A.2d 373 (R.I. 1968). See also Bazant v. Bazant, 439 N.Y.S.2d 521 (1981); Flanagan v. Flanagan, 247 P.2d 212 (Or. 1952); Wheeler v. Wheeler, 222 P.2d 400 (Wash. 1950); Travis v. Travis, 180 P.2d 310 (Kan. 1947); Davis v. Davis, 354 S.W.2d 526 (Mo. App. 1962). Indeed, in several states with statutes worded analogously to Article 72A, joint custody is awarded as a matter of course, given, as always, the appropriate facts and circumstances.

III
Joint Custody in Other Jurisdictions

A. State Laws

Section 9:2-4 of the New Jersey Statutes states, in pertinent part:

"In making an order or judgment relative to the custody of the children pending a controversy between their parents, or in regard to their final possession, the rights of both parents, in the absence of misconduct, shall be held to be equal, and they shall be equally charged with their care, nurture, education and welfare, and the happiness and welfare of the children shall determine the custody or possession."

In Beck v. Beck, 432 A.2d 63 (N.J. 1981), the New Jersey Supreme Court recognized that §9:2-4 does not explicitly authorize joint custody. Yet the court found the statutory language to indicate "a legislative preference for custody decrees that allow both parents full and genuine involvement in the lives of their children following a divorce". 432 A.2d at 65. To the extent that joint custody would promote the best interests of the child in the proper case, albeit a limited class of cases, the court "endorse[d] its use as an alternative to sole custody in matrimonial actions". 432 A.2d at 66. Accord Mayer v. Mayer, 376 A.2d 214 (N.J. Super. Ch. 1977).

Nevertheless, the court in Beck expressly refused to establish a presumption favoring a specific type of custody award, because such presumptions "might serve as a disincentive for the meticulous fact-finding required in custody cases". Beck, 432 A.2d at 66.2 The court considered this fact-finding process to be particularly important in joint custody cases, as "the very interplay of parents and children that gives joint custody its potential value also creates complications different from those found in sole custody arrangements". Id.

The New York courts also infer authority to award joint custody from statutory language that (i) establishes equal custodial rights as between parents, and (ii) requires the court to act in the child's best interests, based upon the facts of each case. Perotti v. Perotti, 355 N.Y.S.2d 68 (1974). See Braiman v. Braiman, 378 N.E.2d 1019, 1020 (N.Y. App. 1978); Dodd v. Dodd, 403 N.Y.S.2d 401, 403 (1978); Odette R. v. Douglas R., 399 N.Y.S.2d 93, 95 (1977).3

Even the most skeptical of the New York courts view joint custody as "a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion". Braiman, 378 N.E.2d at 1021. In this regard, the courts have observed that such awards are generally the result of agreement be-

2 In this regard, an implicit legislative or judicial presumption favoring joint custody also runs the risk of influencing the negotiating process, in a fashion not geared towards furthering the child's best interests. For example, a party failing to request joint custody may be inaccurately viewed as less willing or less able to care for his or her child, or the custody issue may become a bargaining lever to exact terms or concessions favorable to the requesting party. See Perotti v. Perotti, 355 N.Y.S.2d 68, 72 (1974).

3 Under §240 of the New York Domestic Relations Law, "In any action or proceeding brought ... to obtain . . . the custody of or right to visitation with any child of a marriage, the court must give such direction, between the parties, for the custody, care, education and maintenance of any child of the parties, as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the child. In all cases there shall be no prima facie right to the custody of the child in either parent." In Odette R., 399 N.Y.S.2d at 95, and Perotti, 355 N.Y.S.2d at 70, the court expressly found that the statutory grant of authority to award custody to either parent encompasses the authority to grant custody awards to both parents jointly.

tween the parties. Dodd, 403 N.Y.S.2d at 405; Odette R., 399 N.Y.S.2d at 96. But see Perotti, 355 N.Y.S.2d 68; Woicik v. Woicik, 321 N.Y.S.2d 5 (1971).

Finally, the Iowa Supreme Court, examining the significance of newly-enacted legislation that stated simply, "The court may provide for joint custody of the children by the parties", observed that the court's power to order joint custody, when justified, was already implicit in its duty to establish custody. In re Marriage of Burham, 283 N.W.2d 269, 272 (Iowa 1979). The court continued: "Prior to the recent amendment . . . , joint, or divided, custody was never forbidden by statute. Thus, the legislature has now simply placed its imprimatur upon joint custody." Id.

B. Factors for Consideration

As we have noted, the paramount concern and controlling legal standard in custody proceedings is the "best interests of the child". Those courts embracing joint custody generally discuss several criteria when evaluating its feasibility. As the courts appear to favor custody arrangements that are both consensual and carefully planned, such factors are usually grounded in practical considerations.4

Foremost among these considerations is the concern that both parents be "fit" or "physically and psychologically capable of fulfilling the role of parent". Beck v. Beck, 432 A.2d 63, 71 (N.J. 1981) (quoting Miller, Joint Custody, 13 Family L.Q. 345, 369 (1979)). This factor presumes a viable relationship between each parent and the child. Of equal importance is the ability of the parents to cooperate with each other, to set aside personal conflict, for the benefit and welfare of the children. Compare Beck, 432 A.2d at 71-72, with Braiman, 378 N.E.2d at 1021. See also Miller, Joint Custody, 13 Family L.Q. 345, 369-70 (1979).

Mutual acceptance of joint custody has also been emphasized by the courts. In this regard, joint custody awards are gener-

4 Other states expressly incorporate these factors into their child custody statutes, e.g., Mo. Ann. Stat. §452.375, Mich. Stat. Ann. §25.312. The importance of any one criterion is, of course, dependent upon the unique facts and circumstances of the particular case.

ally the result of mutual request. However, application by both parents is not an inflexible prerequisite, as long as both parents demonstrate the willingness and capacity to care for the children. Beck, 432 A.2d at 71. See also Perotti, 355 N.Y.S.2d at 72; Mayer, 376 A.2d at 219.

In terms of the physical aspects of joint custody, several interrelated issues are evaluated. For example, the financial status of the parents is considered, their respective capacity to provide food, clothing, medical care, etc., to the child. See Beck, 432 A.2d at 72; Lustig v. Lustig, 299 N.W.2d 375, 380-81 (Mich. App. 1980). Geographical proximity of the parents' homes is another factor, to the extent that it may affect schooling, travel, and the child's access to friends and relatives. Beck, 432 A.2d at 72. Nevertheless, courts are flexible in adapting joint custody decrees to the needs of distant parents. See, e.g., Bazant v. Bazant, 439 N.Y.S.2d 521 (1981); Wheeler v. Wheeler, 222 P.2d 400 (Wash. 1950); Fago v. Fago, 250 S.W.2d 837 (Mo. App. 1952); Baer v. Baer, 51 S.W.2d 873 (Mo. App. 1932). Parental working schedules are also addressed, especially with regard to the age and number of children in issue. See Burham, 283 N.W.2d at 274; Mayer, 376 A.2d at 219-20. Finally, the child's preference is sometimes ascertained, although the courts have considerable discretion as to the weight accorded the testimony of a child. Beck, 432 A.2d at 73; Burham, 283 N.W.2d at 274.5

IV
Conclusion

In summary, we believe that the Maryland courts may provide for joint custody, whenever such an award is determined to be in the child's best interests. This conclusion is based on the express language of Article 72A, §1 [FL §5-203] of the Maryland Code; the express recognition of joint custody awards in those states with statutes worded in a similar fashion; and the Maryland courts' prior affirmation of decrees that implicitly award joint custody to "fit" parents.

5 For a comprehensive checklist of specific issues and items that should be considered when devising a joint custody agreement, see Miller, Joint Custody, 13 Family L.Q. 345, 390-92 (1979).

Nevertheless, given (i) recurrent questions about the equity court's current authority to award joint custody in appropriate circumstances, (ii) the absence of any express characterization of "joint custody", as such, in Maryland case law, and (iii) some statutory ambiguity as regards certain potential effects of awards of joint custody (see Article 72A, §1A [FL §5-204], concerning the domicile of a child of separated parents),6 legislation that expressly enables the equity courts to award joint custody would, in our view, be a useful addition to the statutory law of this State.

Stephen H. Sachs, Attorney General
Lynette M. Phillips, Staff Attorney, Opinions and Advice
Avery Aisenstark, Chief Counsel, Opinions and Advice

Editor's Note: Since the issuance of this Opinion, the Court of Special Appeals has ruled directly on the issue of joint custody. Kerns v. Kerns, 59 Md. App. 87 (1984). Relying in part on this Opinion [see 59 Md. App. at 91], the Court concluded:

"[I]n Maryland[,] a court of equity has the authority to provide for joint custody whenever such an award is determined to be in the child's best interests. The fact that the parties do not request joint custody is no limitation upon a court's authority to award it. While a request for joint custody may be a factor to be weighed by a chancellor in the sound exercise of his discretion, it is not a jurisdictional prerequisite to an award of such custody." 59 Md. App. at 94.

See also Taylor v. Taylor, 60 Md. App. 260 (1984).

6 Article 72A, §1A [FL §5-204] provides in pertinent part: "The domicile of a child is the same as the domicile of both or one of its parents. If the parents live apart, the child's domicile is that of . . . the parent to whom legal custody is awarded . . . ". As worded, the statute addresses the consequences of some, but not all, types of custody awards. However, simply because §1A apparently does not address the effect on a child's domicile of all forms of legal custody, we do not read that section to preclude by implication alternative awards such as joint custody. Indeed, we note that, of the several bills introduced during the 1983 legislative session to expressly provide for joint custody, not one would have amended §1A.