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March 20, 2015 by Robert Franklin, Esq, Member, National Board of Directors, National Parents Organization

In Maryland, House Bill 888 is now pending before the House Judiciary Committee. It’s a simple bill that would establish the presumption in child custody cases that

(1) JOINT LEGAL CUSTODY IS IN THE BEST INTERESTS OF THE CHILD;

AND

(2) JOINT PHYSICAL CUSTODY FOR APPROXIMATELY EQUAL PERIODS 7 OF TIME IS IN THE BEST INTERESTS OF THE CHILD.

It further provides that, based on a preponderance of evidence, a judge can order sole custody. It’s a simple bill, which is good. But it gives judges an easy out that they need not explain by written findings. And their denial of equal custody can be supported by the lowest standard of proof anywhere in American law.

In short, even if it passes, it may not make a great change in custody outcomes. But it may, depending on how biased or how even-handed a judge might be. One of the strong points of HB 888 is its simplicity. There’s no doubt about its meaning and no one can complain that it would allow abusive parents to get custody. If enacted into law, HB 888 would allow judges to consider anything and everything in making their custody decisions.

Speaking of bias, here’s one of the best editorials I’ve read in a while that both recognizes the pro-mother/anti-father bias we see all too often in family courts and calls for the establishment of a presumption of equal parenting (Frederick News-Post, 3/18/15).

The article details the case of Edward Hostetter. The family court judge’s ruling ordering sole maternal custody of a 14-year-old girl looks strongly like a case of pro-mother/anti-father bias.

A Talbot County Circuit Court judge’s 2014 child custody ruling has been vacated by the intermediate Maryland Court of Special Appeals. That court ruled that Judge Broughton M. Earnest’s awarding of physical custody to the mother of a then-14-year-old girl was in contradiction of state law and judicial precedent.

Earnest wrote in his memorandum opinion that as “an adolescent female, this may be the most important time in her life to have a solid relationship with her mother.” While that may have been true, a recent Daily Record story pointed out that the state of Maryland “abandoned by statute in 1974 the so-called ‘maternal preference doctrine,’ under which children were presumed to belong with their mother.”

The state’s position was affirmed in 1998 by the Court of Appeals, Maryland’s highest court, which ruled that the state constitution’s Equal Rights Amendment prohibits custody determinations derived through gender-based preferences…

In the case in question, Edward Hostetter appealed the Talbot County Circuit Court’s decision to award physical custody of his teenage daughter to his wife. His appellate counsel, Cynthia E. Young, brought state law and the previous court ruling to bear in her argument. As the Daily Record story reported, Young said that the Court of Appeals had also held that the law prohibits judges hearing custody cases from making “the generalization that women are better for daughters” and that men are better choices to raise sons.

In short, a family court judge violated Maryland state law that goes back to 1974 in order to give sole custody of a child to a mother. Fortunately, the court of appeals had more respect for statute law and judicial precedent and reversed the court’s ruling. But, as the linked-to article points out, old habits die hard. That seems particularly true in child custody cases in which many judges can’t seem to grasp the idea that children need both their parents.

We agree with the state’s position on this, which demands nothing more than a fair and impartial determination regarding minor-child custody. The historic presumption that the mother will be a better parent to a child or is somehow more intrinsically entitled to custody of children is a precept no longer supported by law.

It’s also not supported by the science on children’s well-being as it relates to family structure. That science exhaustively demonstrates that, in virtually every situation, children do better with both parents in their lives than just one. Parents do too; equal parenting orders tend to reduce parental conflict.

Legislation currently being considered by the Maryland House and Senate would impose on judges a “rebuttable presumption” of giving estranged parents joint physical custody of a child. The Daily Record story reports that House and Senate sponsors of the bill “have said the presumption is necessary to prevent a latent preference by judges to award custody to mothers rather than fathers.”

We suspect that the “latent preference” these bills are designed to address is a real and continuing presence in custody cases.

Last year, the National Parents Organization graded each state’s laws regarding child custody. Maryland received a D -, the second worst grade possible. HB 888, even though it allows judges considerable discretion and even though at least some judges still reflexively opt for maternal custody, would be a huge improvement in children’s ability to continue meaningful relationships with both parents post-divorce.

Good for the Frederick News-Post for backing a bill that’s not perfect, but a big improvement over D -.

Thanks to Don for the heads-up.

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National Parents Organization is a non-profit that educates the public, families, educators, and legislators about the importance of shared parenting and how it can reduce conflict in children, parents, and extended families. Along with Shared Parenting we advocate for fair Child Support and Alimony Legislation. Want to get involved?  Here’s how:

Together, we can drive home the family, child development, social and national benefits of shared parenting, and fair child support and alimony. Thank you for your activism.

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