Santo v. Santo & Joint Custody With Tie-Breaking Authority in Maryland

Author: Heather Sweren

In a recent decision, Santo v. Santo (citation not yet available), published July 11, 2016, the Maryland Court of Appeals confirmed a trial judge’s authority to award one party tie-breaking authority, for legal custody, even when parents have an inability to communicate on major decisions affecting the health, education, welfare, religion of a minor child.

What does this mean in your case? Even if you can show an inability to communicate, the Court may still require you to communicate and attempt to reach shared decisions for your child.

The parent who has “legal custody” is the parent who will make major decisions impacting the minor children’s health, education, religion, and general well-being.  Joint legal custodian must make these decisions together. As in any custody-related decision, the trial court must fashion a legal custody award based on the best interests of the minor children.

In the 1986 decision, Taylor v. Taylor, 306 Md. 290, 508 A.2d 964 (1986), the Maryland Court of Appeals set forth numerous factors that a court must consider when making an award of legal custody, with as significant factor being “the capacity of the parents to communicate and to reach shared decisions affecting a child’s welfare.”

The trial court in Santo repeatedly found that the parents were unable to communicate to reach shared decisions, which impacted the children’s school placement, medical care, and activities. Notwithstanding, rather than awarding one party sole legal custody, the trial judge maintained joint legal custody, but awarded the father tie-breaking authority as to decisions regarding health (except the mother was awarded the right to choose a therapist), education and religion. This means that if, after efforts are made to communicate and reach shared decisions, the parents are at an impasse and unable to reach a shared decision, the parent with tie-breaking authority may make the decision.  Tie-breaking authority allows both parents to be involved in the decision-making process, but provides a mechanism to make a decision in the event of a disagreement; thereby benefiting the minor children.

However, even if you cannot communicate with your spouse regarding decisions affecting your minor child(ren), that alone may not be enough for an award of sole legal custody.  As each family dynamic is different, it is important to discuss your specific facts and circumstances with a lawyer.

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About The Author:

Heather Sweren


Heather Sweren is a certified best interest attorney for minors as well as a talented family law attorney. She joined the firm in 2006 and was named a partner in 2015. Ms. Sweren is actively involved with the Montgomery County and Maryland Bar Associations through a variety of committees.

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