Taylor v. Taylor
| Decision Date | 01 September 1985 |
| Docket Number | No. 23,23 |
| Citation | 508 A.2d 964,306 Md. 290 |
| Parties | , 55 USLW 2038 Judith Ann TAYLOR v. Neil R. TAYLOR, III. , |
| Court | Maryland Court of Appeals |
Bruce A. Kaufman (Thomas D. Wolfe and Miller, Rosenthal & Kaufman, P.A., on brief), Baltimore, for appellant.
Ronald M. Naditch (Ronald M. Naditch, P.A., on brief), Annapolis, for appellee.
Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, RODOWSKY, COUCH and McAULIFFE, JJ.
We here decide that a circuit court in the exercise of its general equity powers may order joint custody of children. We neither affirm nor reverse the order for joint custody in this case, but remand the case to the trial court for reconsideration in the light of the principles discussed herein.
The parties to this appeal are Judith Ann Taylor (Appellant) and Neil Randall Taylor, III (Appellee). The Taylors were married on November 26, 1977, and are the parents of Christina Lee Taylor, born April 9, 1979, and Neil Randall Taylor, IV, born August 5, 1980.
During the summer of 1982, the Taylors began experiencing marital difficulties and on September 10, 1982, they separated. Appellant left the marital home in Elkton, and took up residence with her parents in nearby Newark, Delaware. The children continued to reside in the marital home. On September 29, Appellee filed a Bill of Complaint in the Circuit Court for Cecil County seeking an absolute divorce and temporary and permanent custody of the children. Appellant filed an answer on November 3 in which she requested custody of the children pendente lite and permanently. 1
On November 24 a "visitation schedule," signed only by counsel, was filed, detailing an apparent agreement between the parties, and specifying the days and times that each party would have the children. 2 On December 7, Judge Donaldson Cole entered a pendent lite order granting the parties "joint custody" of the children "in consideration of the agreement of the parties." The order further provided that the children were to reside with Appellee in the family home, and incorporated by reference the visitation schedule previously filed.
On April 7, 1983, Appellant changed attorneys. Five days later she filed an amended and supplemental answer in which she requested that the order of December 7, 1982, be stricken, and that she be awarded care and custody of the children. Appellant alleged that the order providing joint custody pendente lite was the result of "a meeting with the court without her knowledge," and of action taken by her attorney without her authority. Trial on the merits occurred shortly thereafter, and following a five day trial Judge H. Kenneth Mackey granted Appellee's request for an absolute divorce, and ordered continuation of the arrangement spelled out in the "visitation agreement," which he characterized as "a sort of joint custody." Noting that under the arrangement agreed to by the parties the marital home in Elkton served as the primary residence of the children, the trial judge entered a use and possession order in favor of Appellee. Appellant's Motion for Reconsideration was denied, and she noted an appeal to the Court of Special Appeals. That court affirmed. Taylor v. Taylor, 60 Md.App. 268, 482 A.2d 164 (1984). We granted certiorari to consider the following two questions:
1) Whether a trial judge in Maryland has the authority to grant joint custody; and
2) Whether, if the trial judge did have the authority to grant such an award, he abused his discretion under the facts of this case.
This dynamic and emotionally charged field of law is unfortunately afflicted with significant semantical problems, described by one writer as a "frightful lack of linguistic uniformity." 3 The inability of courts and commentators to agree on what is meant by the term "joint custody" makes difficult the task of distilling principles and guidelines from a rapidly growing body of literature and case law. What one writer sees as an amorphous concept another sees as a structured legal arrangement. While it is clear that both parents in a joint custody arrangement function as "custodians" in the sense that they are actually involved in the overall welfare of their child, a distinction must be made between sharing parental responsibility in major decision-making matters and sharing responsibility for providing a home for the child.
Embraced within the meaning of "custody" are the concepts of "legal" and "physical" custody. Legal custody carries with it the right and obligation to make long range decisions involving education, religious training, discipline, medical care, and other matters of major significance concerning the child's life and welfare. 4 See generally P. Axelrod, A. Everett and A. Haralambie, Joint Custody, in Handling Child Custody Cases § 5.01, at 50 (1983); A. Berman and D. Kirsh, Definitions of Joint Custody, 5 Fam.Advoc. 2 (Fall, 1982); J. Ester, Maryland Custody Law-Fully Committed to the Child's Best Interests?, 41 Md.L.Rev. 225, 251 (1982); Joint Custody and Shared Parenting ch. 1, at 7 (J. Folberg ed. 1984). Joint legal custody means that both parents have an equal voice in making those decisions, and neither parent's rights are superior to the other.
Physical custody, on the other hand, means the right and obligation to provide a home for the child and to make the day-to-day decisions required during the time the child is actually with the parent having such custody. Joint physical custody is in reality "shared" or "divided" custody. 5 Shared physical custody may, but need not, be on a 50/50 basis, and in fact most commonly will involve custody by one parent during the school year and by the other during summer vacation months, or division between weekdays and weekends, or between days and nights.
With respect to physical custody, there is no difference between the rights and obligations of a parent having temporary custody of a child pursuant to an order of shared physical custody, and one having temporary custody pursuant to an award of visitation. Thus, a determination to grant legal custody to one parent and to allocate physical custody between the parents may be accomplished either by granting sole custody to one parent and specified rights of visitation to the other, or by granting legal custody to one parent and specified periods of physical custody to each parent. In either instance the effect will be the same.
Proper practice in any case involving joint custody dictates that the parties and the trial judge separately consider the issues involved in both joint legal custody and joint physical custody, and that the trial judge state specifically the decision made as to each.
Appellant argues that "[t]here is no express statutory authority for an award of joint custody in Maryland" and that in the absence of such authority a court of equity 6 lacks jurisdiction to grant joint custody. A strong argument can be made that authority to award joint custody is implicit in the language of the several statutes relating to child custody. See Taylor v. Taylor, supra, 60 Md.App. at 272-75, 482 A.2d 164; Kerns v. Kerns, 59 Md.App. 87, 90-94, 474 A.2d 925 (1984); 68 Op.Atty.Gen. 228, 230 n. 1 [Opinion No. 83-024, June 2, 1983]. We need not decide that issue, for we hold the authority to grant joint custody is an integral part of the broad and inherent authority of a court exercising its equitable powers to determine child custody.
Our inquiry, therefore, is not whether the Legislature has granted a power, but whether it has attempted to limit a power that exists as a part of the inherent authority of the court. We find no such limitation intended or expressed.
In the trial of a divorce case, a court of equity may often be required to draw upon separate sources of jurisdiction to afford complete relief. The power to grant a divorce is not a part of the common law jurisdiction of a court of equity, and prior to 1841 was exercised solely by the Legislature. 7 See McAlear v. McAlear, 298 Md. 320, 328 n. 7, 469 A.2d 1256 (1984); Thomas v. Thomas, 294 Md. 605, 609-10, 451 A.2d 1215 (1982); Winston v. Winston, 290 Md. 641, 646 n. 3, 431 A.2d 1330 (1981); Courson v. Courson, 213 Md. 183, 186, 129 A.2d 917 (1957). The authority to award alimony, and to determine custody of children and provide for their support, did not emanate from the Legislature. Glading v. Furman, 282 Md. 200, 208, 383 A.2d 398 (1978); Coleman v. Coleman, 228 Md. 610, 613, 180 A.2d 875 (1962). See also 1 Nelson on Divorce and Annulment § 1.03, at 10 (J. Henderson 2d ed. 1945), wherein the author states:
[S]uch matters as the awarding of alimony, and determining custody of children and providing for their support, though commonly incident to a divorce suit, have a distinct origin and are properly to be regarded as independent causes of action only permissibly joined with the cause of action for divorce, usually by virtue of statute. In so far as they are concerned, courts of equity historically had jurisdiction, and the proceedings are truly equitable. (Footnote omitted).
At the time the instant case was decided, the statute relating to the jurisdiction of an equity court in child custody and related matters was codified at Maryland Code (1974, 1980 Repl.Vol., 1983 Cum.Supp.) § 3-602 of the Courts and Judicial Proceedings Article. 8 It provided, in pertinent part:
(a) Jurisdiction of courts of equity.--A court of equity has jurisdiction over the custody, guardianship, legitimation, maintenance, visitation and support of a child. In exercising its jurisdiction, the court may:
(1) Direct who shall have the custody or guardianship of a child;
(2) Determine the legitimacy of a child, pursuant to § 1-208 of the Estates and Trusts Article of this Code;
(3) Decide who shall be charged with the support and maintenance of a child, pendente lite or permanently;
(4)...
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