Jose v. Jose

Lyonel Jose, Jr. v. Sandra Jose (Farnham), No. 782, September Term 2017. Opinion by
Kenney, J.
FAMILY LAW – CHILD CUSTODY – PHYSICAL CUSTODY
Father was in the military and stationed in California when Daughter was between ages
two and seven. During this time and when his deployment schedule permitted, she spent
four months a year with Father in California, while Mother had primary physical custody
in Maryland. In 2015, after Father’s military obligations concluded, he moved back to
Maryland and sought joint legal and shared physical custody.
Once it is determined that a material change has occurred by a parent moving closer to
the child, the trial court must consider the best interests of the child in determining
physical custody and a visitation schedule, by evaluating the guiding factors laid out in
Montgomery County Dep’t of Soc. Servs. v. Sanders, 38 Md. App. 406 (1977) and Taylor
v. Taylor, 306 Md. 290 (1986).
In considering the Sanders-Taylor factors related to the fitness of the parents, their
adaptability to the tasks of custody, the previous length of separation, and the past
agreements between the parties, the court made findings either without a basis in the
record or without adequately explaining the relevance of its findings to the totality of the
present-day circumstances.
Circuit Court for Anne Arundel County
Case No. 02-C-11-163467
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 782
September Term, 2017
______________________________________
LYONEL JOSE, JR.
v.
SANDRA JOSE (FARNHAM)
______________________________________
Wright,
Arthur,
Kenney, James A., III
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Kenney, J.
______________________________________
Filed: June 27, 2018
Lyonel Jose, Jr. (“Father”), the appellant, and Sandra Farnham, formerly Sandra
Jose, (“Mother”), the appellee, are the divorced parents of a now eight-year-old daughter
(“Daughter”). This case comes a second time to this Court following our remand to the
circuit court in Jose v. Jose, No. 1213, September Term, 2016, slip op. (filed Mar. 10,
2017). Father again challenges the judgment of the Circuit Court for Anne Arundel
County regarding his request to modify the legal and physical custody arrangement of
Daughter. He asks in this timely appeal:
[Did the] trial court err[] by not awarding the parties joint legal and
physical custody?
For the reasons that follow, we affirm as to legal custody, but vacate and remand as to
physical custody.
FACTUAL AND PROCEDURAL BACKGROUND
The facts were thoroughly presented in the “Facts and Proceedings” section of the
earlier unreported opinion, from which we will summarize briefly.
Father and Mother, who both grew up in Maryland, were married on December
29, 2006. Daughter was born on November 14, 2009. When the couple divorced in
2012, Father was on active duty in the United States Marine Corp (“USMC”) and
stationed in California. Mother lived and worked in Maryland.
Under a Voluntary Separation and Property Settlement Agreement (the
“Agreement”) executed on July 12, 2012, the parties shared joint legal custody of
Daughter, with Mother having tie-breaking authority. Mother had primary physical
custody of Daughter in Maryland, and Father had rights of access and visitation. The
Agreement provided two different schedules for Father’s access/visitation, one before
and another after Daughter started pre-kindergarten. We will refer to them as the “pre-
school schedule” and the “school schedule.” Under the pre-school schedule, Daughter
would live with Father 120 days per calendar year in California. Father and Mother
would alternate Christmas holiday periods, and Father would have reasonable visitation
with Daughter when he was in Maryland. After she started school, Daughter would be in
Father’s care from one week after the end of the school year until two weeks prior to the
new school year, in addition to her Spring and Thanksgiving school breaks each year.
Christmas holidays would continue to be alternating.
The parties operated under the pre-school schedule until June 2015, when Father
was medically discharged from the USMC and moved back to Maryland. At that time,
Daughter was five years old and about to begin kindergarten. Operating under the pre-
school schedule, Daughter had lived with Father in California from April 2015 through
July 2015.
Father filed a motion to modify custody, visitation, and child support on June 19,
2015. He alleged that the Agreement was designed to conform to his military status
while living in California, but that he was now discharged and living in Glen Burnie,
Maryland, about 30 minutes from Mother’s home in Bowie. He further alleged that
Daughter would “suffer severe emotional and physical harm if custody [was] not
modified,” and that it would be in Daughter’s best interest to “live with both parties
equally.”
2
In late August 2015, Daughter began kindergarten at Four Seasons Elementary
School, a public school near Gambrills, which is where Mother now lived and about 15-
20 minutes from Father’s home. Operating then under the school schedule, Father
received limited daytime visitation and only about two overnights from August 2015 until
December 2015. Father made numerous requests via email to Mother for visits, weekday
dinners, and weekend overnights with Daughter in September, October, and November
2015. Mother declined these requests because, in her view, they were too disruptive to
Daughter’s routine.
In January 2016, pending resolution of the modification litigation, the parties
agreed to an interim visitation schedule that Mother proposed. Father would have
alternating weekend visitation (from Friday after school until Sunday at 5 p.m.) and
weekly Wednesday night dinner visits. The parties followed this schedule until the
modification hearings concluded.
After Mother filed her answer and a cross-motion, the circuit court held an
evidentiary hearing over two days, May 31, 2016 and June 1, 2016. Father testified and
called his wife, Jacquelyn Jose (“Jacquelyn”) to testify; Mother testified and called her
mother, Margaret Farnham, and her partner, Cyrus Verrani (“Cyrus”), to testify. Both
Mother and Father testified about disputes over access to Daughter that had arisen since
Father’s return to Maryland and their difficulties in communicating with each other.
They primarily communicated by email and text, with, at times, Jacquelyn and Cyrus
acting as intermediaries.
3
For example, the parties had disputed the appropriate medical treatment for
Daughter’s amblyopia, more commonly referred to as “lazy eye.” Daughter had seen two
ophthalmologists in the same practice, both of whom recommended patching therapy.
One of them also recommended additional vision therapy.1 Mother sought another
opinion from a third ophthalmologist in a different practice, who recommended a change
in Daughter’s eyeglass prescription to correct the issue without any other therapy or
treatment. Mother wished to follow the third recommendation; Father disagreed. While
Mother was on a trip to New Zealand, Father took Daughter to see a fourth
ophthalmologist who also recommended patch and vision therapy. Mother, exercising
her tie-breaking authority, decided not to pursue patch or vision therapy.
On another occasion, there was confusion and conflict over Mother’s desire to
acquire a passport for Daughter for international travel. Mother, who had plans to take
Daughter to Niagara Falls, Canada for Daughter’s birthday, had emailed Father about the
feasibility of a passport for Daughter. Father was open to obtaining a passport, but was
hesitant to consent without definite travel plans in place. After much discussion, those
travel plans were eventually dropped. Mother reached out again requesting a passport for
1
Amblyopia is a condition of poor vision in an otherwise healthy eye. A standard
treatment combines patching therapy, which consists of “covering a child’s better-seeing
eye with a patch for two hours a day to improve vision in the weaker eye,” and non-
invasive brain stimulation techniques. See Extended daily eye patching effective at
treating stubborn amblyopia in children, NAT’L INST. OF HEATH (Sept. 20, 2013),
https://perma.cc/RG8X-LEGH; Robert F. Hess and Benjamin Thompson, Amblyopia and
the binocular approach to its therapy, 114 VISION RESEARCH (Sept. 2015),
https://doi.org/10.1016/j.visres.2015.02.009.
4
Daughter to travel with her to New Zealand for Cyrus’s sister’s wedding. Father took
issue with the lengthy absence from school, and declined to consent; Daughter did not go
on that trip.2
Both parties agreed that Daughter was doing well in school and was a happy and
thriving young girl. She was close to both parties, to their respective significant others, to
her baby half-sister, born to Mother, and to her maternal and paternal grandparents. And,
when she was in one parent’s care, she missed the other parent.
They also agreed that it was in Daughter’s best interest to spend time with both of
them and that each is a fit parent. As to physical custody, Father wanted a shared custody
arrangement, such as a “2-2-5”3 schedule. He argued that, while his military service in
California had complicated custody, his discharge and return to Maryland resolved that
issue and evidenced his desire and ability to share custody. Mother asked the court to
modify visitation to maintain the interim schedule that they had been following during
the school year, with Father having alternate weekends, Wednesday night dinners, and in
the summer, from one week after the last day of school until one week before the start of
school.
As to legal custody, Father asked the court to grant joint legal custody, but
eliminate tie-breaking authority because Mother had abused it by using it to shut down
2
The circuit court ordered that the parties cooperate to obtain a passport for
Daughter, which would be kept in Mother’s possession under certain conditions.
3
Also known as a “2-2-5-5” schedule, it is a two-week rotation, where one parent
has Mondays and Tuesdays overnight. The other parent has Wednesdays and Thursdays
overnight. They alternate the Friday-Saturday-Sunday overnights each week.
5
discussion. Mother asked the court to preserve her tie-breaking authority because she and
Father often were unable to reach a mutual decision on important issues concerning
Daughter.
At the outset of the hearing, the court had asked and the parties had affirmed that
they were stipulating to a material change in circumstances. The court then directed them
to “move to the best interest phase for purposes of litigating the matter.” However, in its
opinion and order entered on August 18, 2017, the court found that Father had failed to
provide sufficient proof of a material change of circumstances and, as a result, it did not
engage in a best interest analysis. It ordered that the parties continue to share joint legal
custody of Daughter, with Mother continuing to have tie-breaking authority. It further
ordered that Mother have primary physical custody of Daughter, and altered Father’s
access/visitation schedule, which we summarized as follows:
[The circuit court] proceeded to grant Father visitation on alternating
weekends, from 6 p. m. on Friday and to 6 p.m. on Sunday; for two weeks
in the summer; on Father’s Day (if on a non-access weekend) from 10 a.m.
until 7 p.m.; and on Daughter’s birthday from 10 a.m. until 2 p.m. (if a non-
school day) or from 4 p.m. to 6 p.m. (if a school day). It fashioned an
alternating schedule for holidays and breaks, giving Father access to
Daughter in even years on New Year’s Eve through New Year’s Day;
Memorial Day; the Thanksgiving holiday from Wednesday at 6 p.m.
through Sunday at 5 p.m.; and on Christmas Eve from 4 p.m. until 7 p.m. In
odd years, it granted Father access to Daughter during her spring break
from the day after school ends, at 10 a.m., until the day before it resumes, at
4 p.m.; and on Independence Day, Labor Day, and Christmas Day. The
court did not grant Father Wednesday night dinner visitation (or any
weekday access, except in the summer).
Jose, slip op. at 13.
6
On appeal, this Court vacated the judgment, holding that there was legally
sufficient evidence of a material change in circumstances affecting the Daughter’s
welfare with respect to both legal and physical custody. We remanded the case for the
circuit court to proceed with an analysis of whether the modification sought by Father
would be in Daughter’s best interest. We added that, on remand, “the circuit court may
request additional briefing and hold additional evidentiary proceedings, if necessary, to
consider the parties’ current circumstances if they have changed from the time of the
hearing.” Jose, slip op. at 27.
On remand, the circuit court held a scheduling conference, at which both parties
agreed that there had not been changes in circumstances since the last hearings, and
agreed to file memoranda in lieu of an additional hearing. The circuit court, on May 23,
2017, entered a revised opinion and order. After evaluating the relevant factors and
making findings of fact, it arrived at the same conclusion as before with regard to both
legal and physical custody:
Based on the foregoing considerations and the evidence herein, and
weighing all of the factors as to both legal and physical custody, it is found
to be in the minor child’s best interest to be in the joint legal custody of the
parties, with tie-breaking authority vesting in [Mother]. In sum, the
determining factors as to primary physical custody are caretaking of the
child by her mother, from an early age, which resulted in a stronger bond, a
consistent parenting style and a structure to the child’s day-to-day living
that should not be disturbed. Regular and consistent access by the father
will provide the child with all of the benefits of having two parents in her
life. The Court finds that the minor child should be in the primary physical
custody of [Mother], with [Father] enjoying reasonable access[.]
Father’s access/visitation schedule remained as it was in the August 18, 2017 order.
7
When his May 30, 2017 motion to reconsider was denied, Father filed this timely
appeal. We shall include additional details in our discussion.
DISCUSSION
Standard of Review
Maryland appellate courts employ three methods of review in child custody cases:
When the appellate court scrutinizes factual findings, the clearly erroneous
standard of [current Rule 8-131(c)] applies. If it appears that the chancellor
erred as to matters of law, further proceedings in the trial court will
ordinarily be required unless the error is determined to be harmless.
Finally, when the appellate court views the ultimate conclusion of the
chancellor founded upon sound legal principles and based upon factual
findings that are not clearly erroneous, the chancellor’s decision should be
disturbed only if there has been a clear abuse of discretion.
Wagner v. Wagner, 109 Md. App. 1, 39-40 (1996) (quoting Davis v. Davis, 280 Md. 119,
125-26 (1977)). An abuse of discretion arises when “no reasonable person would take
the view adopted by the [trial] court,” “when the court acts without reference to any
guiding rules or principles,” “when the court’s ruling is clearly against the logic and
effect of facts and inferences before the court,” “when the ruling is violative of fact and
logic,” or when “its decision is well removed from any center mark imagined by the
reviewing court.” Santo v. Santo, 448 Md. 620, 625-26 (2016) (cleaned up). The
standard accounts for the trial court’s “opportunity to observe the demeanor and the
credibility of the parties and the witnesses.” Petrini v. Petrini, 336 Md. 453, 470 (1994).
We will not reverse simply because we would not have made the same ruling. North v.
North, 102 Md. App. 1, 14 (1994).
8
Analysis
As explained in our prior opinion, the circuit court’s analysis of a requested
modification of legal and physical custody follows a two-step process. Jose, slip op. at
17-18; accord In re Deontay J., 408 Md. 152, 165-66 (2009). First, the circuit court
determines whether there has been a material change in circumstance. Wagner, 109 Md.
App. at 39. Second, if the court determines there has been a material change in
circumstance, then it proceeds to consider the best interests of the child, evaluating
guiding factors laid out in Montgomery County Dep’t of Soc. Servs. v. Sanders, 38 Md.
App. 406 (1977) and Taylor v. Taylor, 306 Md. 290 (1986).
Sanders provided ten non-exclusive factors:
1. Fitness of the parents;
2. Character and reputation of the parties;
3. Desire of the natural parents and agreements between the parties;
4. Potentiality of maintaining natural family relations;
5. Preference of the child;
6. Material opportunities affecting the future life of the child;
7. Age, health and sex of the child;
8. Residences of parents and opportunity for visitation;
9. Length of separation from the natural parents;
10. Prior voluntary abandonment or surrender.
38 Md. App. at 420 (citations omitted).
Taylor provided thirteen factors, some of which overlap the Sanders factors:
1. Capacity of the Parents to Communicate and to Reach Shared
Decisions Affecting the Child’s Welfare;
2. Willingness of Parents to Share Custody;
3. Fitness of Parents;
4. Relationship Established Between the Child and Each Parent;
5. Preference of the Child;
6. Potential Disruption of Child’s Social and School Life;
7. Geographic Proximity of Parental Homes;
9
8. Demands of Parental Employment;
9. Age and Number of Children;
10. Sincerity of Parents’ Request;
11. Financial Status of the Parents;
12. Impact on State or Federal Assistance;
13. Benefit to Parents.
306 Md. at 304-11.
When considering the Sanders-Taylor factors, the trial court should examine “the
totality of the situation in the alternative environments” and avoid focusing on or
weighing any single factor to the exclusion of all others. Best v. Best, 93 Md. App. 644,
656 (1992). The best interest standard is “the dispositive factor on which to base custody
awards.” Wagner, 109 Md. App. at 38 (emphasis in original). But, as the Sanders Court
explained:
Unfortunately, there is no litmus paper test that provides a quick and
relatively easy answer to custody matters. Present methods for determining
a child’s best interest are time-consuming, involve a multitude of intangible
factors that ofttimes are ambiguous. The best interest standard is an
amorphous notion, varying with each individual case, and resulting in its
being open to attack as little more than judicial prognostication. The fact
finder is called upon to evaluate the child’s life chances in each of the
homes competing for custody and then to predict with whom the child will
be better off in the future. At the bottom line, what is in the child’s best
interest equals the fact finder’s best guess.
38 Md. App. at 419. In other words, the standard is clear, but applying it can be difficult.
Legal Custody
Father contends that the circuit court abused its discretion by granting joint legal
custody without eliminating Mother’s tie-breaking authority. Mother contends that the
court’s findings, related to the original Agreement, the child’s “greater bond” with
10
Mother, and Father’s concession that communication difficulties “justify the imposition
of a third-party tie-breaker,” support its decision.
While the “capacity of the parents to communicate and to reach shared decisions
affecting the child’s welfare” is relevant to a shared physical custody analysis, it is
especially important in determining whether joint legal custody is appropriate. Taylor,
306 Md. at 304. As the Taylor Court explained:
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. Even in the absence of bitterness or inability to
communicate, if the evidence discloses the parents do not share parenting
values, and each insists on adhering to irreconcilable theories of child-
rearing, joint legal custody is not appropriate.
Id. at 305. Nevertheless, and even when there is evidence of poor parental
communication, joint legal custody may still be appropriate, but in such situations courts
often employ tie-breaking provisions. See Santo, 448 Md. at 643 (holding that it was not
an abuse of discretion to award joint legal and physical custody with a tie-breaker even
though parents do not communicate well).
The circuit court evaluated twelve of the Sanders-Taylor factors with regard to
legal custody. It found seven to be neutral or non-applicable.4 The other five favored
joint legal custody. Of these five, the court found one factor (acceptability of joint legal
4
Those findings were the (1) preference of the child, (2) potential disruption of the
child’s social and school life, (3) demands of parental employment, (4) age and number
of children, (5) sincerity of parents’ request, (6) financial status of parents, and (7) impact
on state or federal assistance.
11
custody to the parents) indicated a need for some tie-breaking authority, and another
factor (relationship between the child and each parent) favored Mother holding it.5
In regard to the amenability of the parents to share custody, the court found:
The parties originally agreed to joint legal custody with tie-breaking
authority vested in [Mother]. [Father] desires to remove such tie-breaking
authority now that he has returned to Maryland, but concedes that the
parties have sufficient difficulties in communicating so as to justify the
imposition of a third-party tie-breaker.
The court concluded that, although its application of the factors “strongly” supports joint
legal custody, “some tie-breaking authority” was appropriate “to resolve disputes.” As to
which parent should fill that role, the court found:
The child enjoys a good relationship with both parents, but has a greater
bond6 with [Mother] due to the significantly greater time the child has been
in [Mother’s] primary custody. This factor mitigates7 in favor of [Mother]
for holding tie-breaking authority.
Father testified at the hearings that communication between him and Mother was
“not great at this point” because “there are so many simple things that end up being an
5
The other three were the (1) fitness of the parents, (2) proximity of the parental
homes, and (3) benefit to the parents.
6
As we explain in more detail in the discussion related to physical custody, we
question whether the evidence supports a finding of “greater bond” with either parent, but
we understand the court to be saying only that in the past the child has spent more time
with Mother, and is weighing that in the tie-breaking analysis. In this context, we are
persuaded that the finding is not clearly erroneous.
7
In its analysis of the factors, the court, on several occasions, concludes that a
factor “mitigates” in favor of Mother. Ordinarily, to mitigate would mean “to cause to
become less harsh or hostile” or “to make less severe or painful.” But sometimes, it is
used as an intransitive verb followed by “against,” “where militate might be expected.”
Webster’s Collegiate Dictionary, Tenth Edition, at 744. “Militate” means “to have
weight or effect.” Id. at 736. We understand its use by the court to mean that it has
weighed the factor in favor of Mother.
12
issue and an inability to come to some kind of consensus” and that “it’s a lot more
complicated than it needs to be.” Examples included disagreements and confusion
regarding Daughter’s eye care treatment, acquiring a passport, and summer camp
enrollment. Mother confirmed communication issues regarding Daughter’s eye care and
passport. And, she testified to disagreements over other issues, including Daughter’s
wardrobe in California, celebrating Christmas and holidays, a BB gun given to Daughter
by a friend of Father, and an incident with a teacher at pre-school.
In short, we hold the findings of the court as they relate to the issue of legal
custody not to be clearly erroneous and its ultimate conclusion not to be a clear abuse of
discretion.
Physical Custody
Father contends on appeal, as he did in the circuit court, that it is in the best
interests of Daughter, under present circumstances, to be with each parent as much as
possible, which, in his view, is on a near equal basis. According to Father, where both
parents are interested and have been actively and continuously involved in the child’s
life, a “shared parenting” plan is in the best interests of the child.8 Therefore, he claims
that the circuit court erred in its application of the Sanders-Taylor factors when it
8
“Shared physical custody” or “shared parenting” refers to those families where
the children live with each parent at least 35% and typically closer to 50% of the time.
See Md. Code Ann. (1989, 2012 Repl. Vol., 2017 Supp.), Family Law § 12-201(n).
Father argues that studies have shown that shared parenting is linked to better outcomes
for children of all ages across a wide range of emotional, behavioral, and health
measures, so long as the parents are not unfit, unloving, or abusive, citing Linda Nielsen,
Shared Physical Custody: Does it Benefit Most Children?, 28 J. AM. ACAD. MATRIM.
LAW 79 (2015).
13
awarded primary physical custody to Mother and established the new access/visitation
schedule.
Under long-existing Maryland law and the “cloak of constitutional protection,” a
non-custodial parent has a “reasonable” right to liberal visitation with his or her child.
See Myers v. Butler, 10 Md. App. 315, 317 (1970); Wolinski v. Browneller, 115 Md. App.
285, 299 (1997) (discussing the Supreme Court’s recognition of a parent’s Fourteenth
Amendment liberty interest in the realm of child rearing and family life). This right is
not absolute, Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (“family itself is not
beyond regulation in the public interest . . . nor rights of parenthood are beyond
limitation”), but any limitations placed on visitation must be reasonable, as the best
interests of the child take precedence.9 Boswell v. Boswell, 352 Md. 204, 219-220 (1998)
(holding that restriction for father’s partner to be absent during visitation was not
reasonable without factual findings as to likely harm to children).
The court considered and expressly evaluated twelve of the Sanders-Taylor factors
with regard to physical custody. Of these, it found eight to be neutral or non-applicable.10
9
In examining reasonableness, courts look to see if the child may be endangered
by spending time with the parent. See, e.g., Painter v. Painter, 113 Md. App. 504 (1997)
(upholding denial of father’s visitation on the basis of severe emotional and physical
abuse of former wife and children); John O. v. Jane O., 90 Md. App. 406 (1992)
(upholding denial of father’s overnight visitation on the basis of sexual misconduct with
his minor child).
10
Those findings were the (1) character and reputation of the parties, (2) physical,
spiritual and moral well-being of the child, (3) environment and surrounding in which the
child will be raised, (4) preference of the child, (5) material opportunities affecting the
future of the child, (6) age and health of the child, (7) residence of parents and
opportunities for visitation, and (8) prior voluntary abandonment.
14
And, four favored Mother. The circuit court awarded primary physical custody to
Mother because of her “caretaking of the child . . . from an early age, which resulted in a
stronger bond, a consistent parenting style and a structure to the child’s day-to-day living
that should not be disturbed.” Father argues that the circuit court’s findings as to these
four factors are not supported by the record. We will address each:
Fitness of the parents
“Both parents are fit. Father has not participated as fully as Mother
in the child’s development due to his military obligations when in
California. As such, this factor is slightly in favor of Mother.”
Father argues that the record shows the opposite because Father had at least 120
overnights in prior years, including about 140 overnights in calendar year 2015, and he
has been actively involved in matters related to Daughter’s daycare, school decisions, and
medical treatment in both California and Maryland.
The court’s finding does not suggest that Father had not participated in Daughter’s
development. And, to the extent that time with a child may have some relevance to
parental fitness, weighing that factor “slightly in favor of Mother” is not clearly
erroneous. But, the ultimate issue before the court involved the here and now as
presented by the change in circumstances. The court attributed Father’s participation in
Daughter’s development “to his military obligation when in California,” but he is no
longer in the military and is living in Maryland in close proximity to Daughter, who has
had extended periods of living with Father without incident.
The adaptability of the custodian to the task
15
“Mother clearly adapted to the role of primary caretaker for the
period she and the child were in Maryland with the Father in California,
and ever since. Father had some periods of time with the child in his
extended care, and no issues seemed to have arisen.”
The circuit court listed this as a factor, but it does not correspond exactly to any
single Sanders-Taylor factor. It, too, takes into consideration past performance, and
seems to relate generally to both “fitness of the parents” and the “relationship between
the child and each parent.” See Taylor, 306 Md. at 308 (“The psychological and physical
capabilities of both parents must be considered, although the determination may vary
depending upon whether a parent is being evaluated for fitness for legal custody or for
physical custody.”). Because Mother had adequately played the role of primary caretaker
for Daughter between ages two and seven, Mother is clearly adaptable to the task. But, at
the same time, Daughter, during those same years, had lived for extended periods of time
with Father with no serious issues arising that would reflect negatively on his adaptability
to the task. Notably, the court did not expressly treat this factor in favor of Mother.
Desire of the natural parents and agreements between the parties
“The prior agreement of the parties granted primary physical custody
to mother, and that is a significant factor in her favor, as it is essentially the
only arrangement the child has known. [Father] asserts that the prior
agreement was due to his military assignment in California. The Court does
not find that this was the exclusive reason; [Father] had significantly less
inclination than [Mother] to perform basic child-rearing functions when the
child was much younger. This factor mitigates strongly in favor of
[Mother].”
The court gave “significant” weight to the prior Agreement without reference to
any other agreements or access arrangements arrived at between the parties. Father
testified that he had entered into the Agreement while he was stationed in California in a
16
deployable unit of the USMC and he did not know, at the time, he would be moving back
to Maryland. Mother testified, however, that when they entered the Agreement, they
knew Father would likely be discharged from the military around 2015. The pre-school
schedule was structured to allow him a four-month block of time in care of Daughter in
between deployment rotations. Prior agreements between the parties may be entitled to
weight, see Breault v. Breault, 250 Md. 173, 180 (1968), but they should be considered in
light of the circumstances when they were entered into along with the totality of the
circumstances surrounding the requested modification.
Nor does the court’s analysis reflect on any agreements involving physical custody
that the parties themselves have been able to arrive at and implement. For example,
during the litigation, the parties agreed to an interim schedule with alternating weekend
visitation and a Wednesday dinner for Father. And, upon his return to Maryland, Father
offered modifying his summer visitation so that Daughter could have spent more time
with Mother during daytime and overnight visits in June and July. The mid-week dinners
proposed by Mother and Mother’s proposed summer schedule beginning one week after
the last day of school and ending one week before school began11 were summarily
eliminated without explanation. We express no opinion as to what schedule would be in
Daughter’s best interest, except to say we ordinarily presume that parents have the best
interests of their children and a court’s unexplained rejection of an access proposal
arrived at by the parents that was in place during the litigation is troubling.
11
Father proposed a week-on, week-off schedule in the summer.
17
Moreover, the court found that Father had “significantly less inclination than
[Mother] to perform basic child-rearing functions” when Daughter was younger, and that
“mitigates strongly in favor of [Mother].” Not only is the relevance of that finding to
either parent’s desire unclear, but we do not find any evidence in the record for that
determination or any evidence that would support an inference to that effect.
Length of separation from the natural parents
“Due to [Father’s] military assignment in California . . . the parties
agreed to primary physical custody in favor of [Mother], with periods of
access by [Father]. The Court will not construe this as being a “separation”
of the child from a natural parent, but rather an interruption to regular
access. Such interruption came at a critical time in the development of the
minor child and allowed a stronger bond to persist with [Mother]. This
factor mitigates strongly in favor of [Mother].”
To be sure, the record shows that Father’s military service and being stationed in
California until mid-2015 impacted the terms of the Agreement and interrupted his
regular access to Daughter. Because this “interruption came” when Daughter was
between ages two and seven, the circuit court found that it came at a critical time in her
development, and inferred or assumed that time equals bond and thus “a stronger bond to
persist with [Mother].” It concluded that this “mitigates strongly in favor of [Mother].”
Any factual basis for this inferential leap and how it relates to the visitation determination
in this case is unclear.12 The record reflects, and both parties agreed, that Daughter is
12
In the context of family law, the term “bonding” is synonymous with
“attachment,” which involves the emotional connection between a parent and a child.
See In re Samone H., 385 Md. 282, 307-312 (2005) (discussing bonding studies
extensively) (citing David E. Arredondo, M.D., and Hon. Leonard P. Edwards,
Attachment, Bonding, And Reciprocal Connectedness, 2 J. CTR. FOR FAM., CHILD. &
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close to both parents and their respective households, and that, when she was in one
parent’s care, she missed the other parent. There is no evidence or testimony from
anyone to the contrary.
In the end, the court based its physical custody conclusion on “caretaking” of
Daughter “from an early age,” “a consistent parenting style” and not disturbing “a
structure to [Daughter’s] day-to-day living,” while acknowledging the benefit of “regular
and consistent access by [Father].” But, in short, the circuit court’s revised order does
not, in our view, adequately explain its resolution of physical custody and particularly
Father’s access to Daughter. See Viamonte v. Viamonte, 131 Md. App. 151, 159 (2000);
Md. Rule 2-522(a) (“In a contested court trial, the judge, before or at the time judgment is
entered, shall prepare and file or dictate into the record a brief statement of the reasons
for the decision . . . .”).
For example, Mother’s recommendation in her testimony, and as advanced by her
counsel in the proceedings, was alternate weekends, a mid-week dinner, and all but two
weeks in the summer for Father. The alternating weekends and the weekly dinners had
been employed by agreement of the parties during the litigation without any evidence of a
meaningful disruption to Daughter’s schedule and routine. And, we are especially
perplexed by the court’s determination to limit Father’s summer visitation to two weeks.
The pre-school and school schedules under the Agreement provided for extended stays
with Father, and they had occurred in the past without incident.
CTS. 109, 114 (2000)). Of course, expert testimony or a bonding study is not necessarily
required for a judge to make a finding of fact on “bonding.”
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The record reflects two intelligent and caring parents, who both want the best for
Daughter and both of whom were optimistic that their communication difficulties will
improve once litigation concluded. Hopefully, that will be the case.
JUDGMENT OF THE CIRCUIT COURT
FOR ANNE ARUNDEL COUNTY AS TO
LEGAL CUSTODY AFFIRMED.
JUDGMENT AS TO PHYSICAL
CUSTODY IS VACATED AND THE CASE
IS REMANDED FOR FURTHER
PROCEEDINGS NOT INCONSISTENT
WITH THIS OPINION.
COSTS TO BE DIVIDED EQUALLY
BETWEEN THE PARTIES.
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