Conference - Custody Decision-Making in Maryland: Practice, Principles, and Process

The Honorable Robert M. Bell, Chief Judge, Maryland Court of Appeals; Professor Jana Singer, University of Maryland School of Law; Rebecca Saybolt Bainum, Women's Law Center of Maryland; Pamela Cardullo Ortiz, Family Administration, Administrative Office of the Courts; Professor Jane Murphy, University of Baltimore School of Law

In May 2003, the Division of U.S. Studies brought together a group of judges, court administrators, family law attorneys, and scholars to discuss the American Law Institute's Principles of Family Dissolution: Analysis and Recommendations. Some of the participants decided to continue that examination, devoting the fourth annual University of Maryland School of Law and University of Baltimore School of Law's Family Law Symposium to an analysis of current and possible future approaches to custody decisions in cases of divorce or parental separation.

Professor Jana Singer began the conference with an overview of the Principles, highlighting the ALI's recommendations for parenting plans and its suggestion of the approximation standard. ALI would have each parent who is seeking custodial or decision-making responsibility submit a plan to the court, articulating his or her view of the best division of parental responsibilities for the children and justifying the ways his or her plan would best provide for the children's needs. (Parents would not be precluded from filing a joint plan.) The ALI also advocates a shift to an "approximation standard" that would permit children to spend proportionately the same amount of time with each parent after divorce as they did before. The standard was created by ALI as an alternative to the current "best interests of the child" rule which is indeterminate and unpredictable. The "best interests" standard, which rests on the frequently fallacious assumption that a judge can assess what is best for unknown children and can implement the result once judicial proceedings have ended, tends to produce difficult negotiations and allows for the intrusion of a judge's biases. While she acknowledged that the "approximation standard" approach is not flawless, Singer emphasized its flexibility and the importance of consistency for children's schedules as a means of providing reassurance in times of transition.

Rebecca Saybolt Bainum, Legal Projects Manager of the Women's Law Center of Maryland, presented the results of the path-breaking study WLC carried out of the disposition of custody cases in the state of Maryland. According to the WLC findings from FY-1999, parents ultimately shared custody in one way or another in nearly 50% of cases, the overwhelming majority of custody decisions were reached by agreement than through judicial intervention, and far less subsequent litigation resulted when decisions were made by the parties themselves. These findings suggest that there would be significant benefits to increased mediation and conflict resolution services. Perhaps most startlingly, the study demonstrated a strong inverse relationship between custodial involvement for mothers and money granted to mothers through alimony and child support: the more time and responsibility a mother was granted with and for her children, the less money she typically received from the father. This finding was troubling to advocates who hoped to see custody cases providing children with the best possible post-divorce circumstances—instead, it appears that custody is still used as an arena for competition between divorcing parents, and is being weighed against financial support rather than coupled with it to secure benefits for the children.

Pamela Cardullo Ortiz of the Administration Office of the Courts, Family Administration Division, reported that in the last five years, Maryland has successfully established a "family law coordinator" in each county to serve as a resource for divorcing parents. A number of practitioners in the audience focused on the need for additional court personnel to help the large number of Maryland matrimonial litigants who represent themselves: more than the majority overall and over 80% in Baltimore City. Some of the judges present at the conference emphasized the need for courts to obtain better information about the children whose welfare is at issue; this may require appointment of a third party advocate. Judge Robert Bell, who opened the session, spoke about the effect of the limited number of judges in some of Maryland's 24 jurisdictions. Because of their low number, judges in those jurisdictions are expected to handle the full range of litigation (civil cases, criminal cases, property disputes, divorce actions), limiting the ability of any one judge to hear cases in only one area and obtain expertise in deciding them.

During the question and answer period, psychologist Bruce Copeland objected to the approximation standard as insufficiently child-oriented. The past division of custodial responsibilities, he argued, indicates nothing about the quality of the care provided by each parent or of the changing needs that exist as a child grows and develops. Audience members also expressed concern about the current ability of judges to screen out domestic abusers in awarding custody.

At the end of a lively meeting, there was general agreement that the dialogue must continue.

Philippa Strum, Director of U.S. Studies 202/691-4129