The 50/50 Myth: What Maryland Judges Really Consider in a Custody Case

David Bulitt: [00:00:00] Welcome to JGL Law for You. JGL Law for You is a podcast by lawyers, but not for lawyers only. On JGL Law for You, we will be discussing a wide array of topics to help you navigate the many legal processes,

Chris Castellano: developments in the law, other current events, and how they may affect you, your family, or your business.

David Bulitt: I am David Bulitt, and I’m back with my favorite and most frequent guest, my law partner, Chris Castellano. Today we’re talking about joint custody, 50-50 timesharing. Is it real? Does it happen in every case or is it a myth? I mean, one of the most common statements that family law attorneys hear is I am entitled to 50-50 custody. Half time is what their potential clients say. Chris, welcome back. You’re here to clear all of this up and let’s talk a little bit about it.

Chris Castellano: Yeah, thank you, as usual, for having me, David. And yes, it’s one of the more common refrains that we hear from clients is, well, you know, I’m a good dad. I’m a good [00:01:00] mom. I’m entitled to 50-50. Why should I accept anything less? So yeah, that’s why we’re here today.

David Bulitt: Well, doesn’t it? I mean, it makes sense, right? Doesn’t the law, don’t courts assume that parents should equally divide their children 50% of the time?

Chris Castellano: Yeah. So in Maryland, the court does not have a written down axiom or statement that says that we start at 50-50 and you’ve got to go from there, right? That doesn’t exist in Maryland. So it’s easy to understand why clients would, parents going through a divorce and custody situation would assume that, well, listen, I had 100% custody five minutes ago. You know, why should I accept anything less than 50%? So, but unfortunately in Maryland, fortunately or unfortunately, yeah, we do not have a baseline default standard of 50-50.

David Bulitt: There’s no presumption that there ought to be a week on, week off or some other schedule that gives each parent equal time. Is that what you’re saying?

Chris Castellano: That’s right. That’s right.

David Bulitt: Well, why [00:02:00] not? Why isn’t there? I mean, you know, you got two good parents and shouldn’t the child just go back and forth and spend equal time with each parent? Why isn’t there? Why do you think that there isn’t such a presumption?

Chris Castellano: Well, and it’s interesting because, you know, and this is not to speak about other states that maybe have a presumption, but in Maryland, we now have a couple of statutes, which we’ll get into about how we look at custody. custody. But for a long time, we were operating on a little bit more of a looser framework that allowed the courts to fill in any gaps. And the overarching premise here is the best interest of the children or child, if it’s an individual child. So when you look at it from that perspective, the court says, you know what? No, our primary focus is what’s in the best interest of the child. If you operate with a default presumption of 50-50, you’re no longer operating with that fundamental basis of the best interest of the children. You’re operating [00:03:00] from, hey, we start at 50, so now what factors allow us to deviate from that 50-50? And when you start to think about it, that is a significantly different equation than what is in the true best interest of the children.

David Bulitt: So you mentioned factors. Tell us about, and when you talk about factors, you’re talking about specific items that a judge ought consider or can consider in making a decision about custodial issues. I mean, not just decision making, but not just time sharing, but both. So tell us about those factors and how they’re, how they come into play when there’s just, there’s a dispute, not just over time sharing, but also about decision making.

Chris Castellano: For a long time, we used to have a couple of cases that developed some items that the court would look to that all of us lawyers would say, all right, you know what? You know, we’ve got this factor out of these case law items, right? But we now have a statute, Maryland Family Law Code [00:04:00] 9201. This 9201 enumerates 15 very specific factors with a 16th kind of kitchen sink, if you will, factor, right? And these 15 factors, I’m not going to go through each one. Our audience can Google the actual statute because otherwise to read it would be a little bit too much time intensive. But, you know, let’s look at some of the highlights, if you will. Stability and foreseeable health and welfare of the child. That is a preeminent factor that the court’s going to look at. And now that I say that, no one factor is above the other on this list, I should say. But these are some of these factors. How about frequent, regular, and continuing contact with parents who can act in the child’s best interest? That goes, again, that’s going to be looking at your fitness issues with the parents that are going to play into that. The child’s relationship with each parent, any sibling, other relatives, and individuals who may become important in the child’s life. So they’re looking [00:05:00] at whether or not, you know, a particular custodial situation is going to have an impact on the kid’s ability to see, perhaps in a blended family situation, their half sibling or other siblings that may not fall into the exact same parenting schedule that you or the court is examining at the time. So, and again, that’s three factors out of the 15 plus the one kitchen sink factor that the court’s going to look at when deciding a child custody scenario.

David Bulitt: And judges have very broad discretion, right, in terms of applying these factors or weighing one factor more than another because of whatever circumstances might exist in a particular case or with a particular family, right?

Chris Castellano: Well, that’s right, because the fact of the matter remains that some of these factors, they’re not going to apply, right? One of the factors is whether there’s a military deployment of a parent. Of course, that’s not a relevant factor for some families. It is for others. The age of the child, you would think that that’s relevant [00:06:00] in a whole host of cases. But the age of the child, when the age is seven or nine versus a kid that’s 17, that’s a drastically different custodial case. And so, yes, it’s within the discretion of the court as to which item they’re looking at. However, to be clear, statute, and it’s frankly, it’s nice that the statute has this, right, is that it enumerates all the factors that the court may consider. So as a litigant, when you’re going into your custody trial, this is the world within that the court is examining my case.

David Bulitt: Yeah, I mean, and you mentioned it twice, this kitchen sink factor. I think what is important for people is to understand that the kitchen sink factor is basically anything else that a judge hears during the course of a trial that they may think affects the child’s best interests.

Chris Castellano: Yeah,

David Bulitt: I

Chris Castellano: mean,

David Bulitt: absolutely.

Chris Castellano: I mean, the specific language is any other factor that the court considers appropriate in determining how best to serve the [00:07:00] physical, developmental, and emotional needs of the child. So, I mean, and you know this better than I do, but the Taylor, the factors, Sanders factors, all the factors that we used to look at, I think the total number was somewhere in excess of like 24 to 33

David Bulitt: factors. There was a lot. Yes.

Chris Castellano: So, you know, a lot of lawyers got very comfortable with a whole host of different factors that fit the fact pattern of the case. And that makes sense. And so I think legislature was correct in including this factor to ensure that there’s some maneuverability here that allows litigants to present a case that may not fit perfectly within factors one through 15.

David Bulitt: Are there anything that exists that might be more important in a custody determination than parents might otherwise think, than a client that comes to you might otherwise believe?

Chris Castellano: Yeah, so, you know, this is interesting. And again, it’s different for every parent, [00:08:00] every custodial case, but there’s certainly some items that, let’s say, go under the radar. And they’re the things that impact the child perhaps the most, right? When you get your child up for school every day, and they’re going to, let’s just call it elementary school because they require a little bit more help, a little more assistance to get ready. It’s maintaining that routine. It’s making that lunch, getting the hair ready or, you know, the clothes ready, etc. All the hygiene needs, getting them out to the door on time to get into school on time. All of these things, if one of those drops off, you know, this kid is not set up for a successful day. You start compounding that and over time, they’re becoming less successful in school. Their friendships are hurting, right? And they are becoming overall less productive as a child in that developmental span in which they’re supposed to be growing. And so that morning routine is so [00:09:00] critical. And yet it sometimes can fall off the radar of litigants and therefore the court because, you know, the issue of, oh, well, they’re not bringing the kid to lacrosse practice. Well, OK. Okay, that’s not to diminish some other factors, but there are some big ones that lay the groundwork for success. You know, and also look to who’s going to the doctor’s appointments for the kids, right? Who’s bringing the kid to the doctor? Is it one parent every single time? Are they the ones that are in constant communication with the therapist, with the dentist, with the pediatrician? And then the basics. Who’s doing the kid’s homework? When the kid’s coming home, who is sitting down and making sure homework’s getting done, reading books to the kid? And when you start to go a little bit more one-sided on these issues, all of a sudden it becomes clear to the judge of, hey, which of these factors, which of those 15 enumerated factors and then kitchen sink within [00:10:00] 16, am I going to look to really kind of reconcile some of these issues and let’s say inequality relative to responsibilities for this child?

David Bulitt: What about geography? You know, the distance that people live to each other with the distance they live from schools, from families, from childcare, from their travel baseball team practices. Is there any relevance or any impact when it comes to geography where folks live?

Chris Castellano: Yeah. And, you know, this is such an issue here in Montgomery County where we’re located because living, let’s say, 10 minutes down the road, down 270 as the crow flies with traffic could be 35 to 40 minutes. And so if I’ve got a client that lives in, I don’t know, Germantown and the other spouse or other parent decides to live in Kentlands or Lakelands, that is a drastically different drive depending on the day. The

David Bulitt: time of day.

Chris Castellano: Yeah, yeah. And so driving [00:11:00] to school, getting to school on time, that has an impact on that. Let’s say the pediatrician is up in Clarksburg. So going from Germantown to Clarksburg is no big deal. Going from Kentlands to Clarksburg to the pediatrician, drastically different equation. And the same thing, as you point out, with the travel baseball. I mean, travel baseball kids are going to have a practice, what, a three-hour practice every single night?

David Bulitt: Well, there’s a lot. I think what you’re getting at, the other part of this is the amount of time that you add to a child’s brain active day, right? So whether it’s from here to there, whatever it might be, but if you’ve moved someplace, you client Jones have moved someplace that, well, if you look on a map, it’s only seven miles away. But if I’ve got to pick, if I got to get down there, wherever there is, and get back, and then got to get that child back down there again for a certain activity, that could add an hour, hour and a half, two hours a day to [00:12:00] that child’s sort of, I say, active brain time, which may be fine because some kids might do really well traveling. But for most kids, and I think most judges, it seems to me, and tell me if you think I’m wrong, I say that’s a lot of time to add to an eight-year-old’s day, a 10-year-old’s day, even a 12 or 14-year-old’s day.

Chris Castellano: Well, that’s right. And ultimately, I tend to believe that what the court’s really looking at is how can I make a parenting time schedule that facilitates quality time between a parent and a child? And if the child’s sitting in a car seat in the back and you’re driving, you’re focused on driving, you’re supposed to be focused on driving, how is that quality time, right?

David Bulitt: And what about work schedules? Folks work there. I mean, again, here we go with your client comes in who says, you know, I deserve to have 50-50 time, but travels a lot for work or has to get up, might be, you know, use a physician, for example, has to be at the hospital at six o’clock in the morning and can’t [00:13:00] be back until after school is over. I don’t mean to knock doctors, but that happens as it happens in other areas also. Are those work schedules something that a court can look at or is sensitive to?

Chris Castellano: Yeah, absolutely. I mean, and again, it’s all about how does it impact the child? And listen, if this is a thing that the family has been used to and they’ve developed a routine around, let’s say, you know, mom’s got to get to the hospital at six o’clock to start her day or has on-call weekends and weeks, that’s perhaps you can start to mitigate some of those factors in the judge’s eyes. Sure. But it’s absolutely going to be a relevant factor because again, it goes to the bigger picture of how do all of these little facts that build up your daily life and build up the daily life of the other parent, how does that impact the child? And listen, if it’s an impact that is easily mitigated [00:14:00] or doesn’t really have a deleterious effect on the child, then sure, maybe the court’s going to say, listen, I get it. I understand it. However, that’s not something that’s going to get me to drastically change what I’m thinking from a custody standpoint.

David Bulitt: And is the ability of the parents to get along, to communicate, at least as it relates to the kids. Get along, make decisions together, communicate with regard to their child or children. Is that something that’s important?

Chris Castellano: Wow, so critical. And now we go back into more of, you know, where your work schedule impacts the parenting time. You know, the communication ability impacts legal custody. And you and I have talked about this a few times relative to like the AI and advent and increased use of AI. For a long time, we used to look at communications, text messages, and emails as far as, you know, how can these people talk to each other. Of all of the things we’re going to talk today, I suspect [00:15:00] that the communication between parents will become a lot trickier of a question for the courts because if somebody has an AI agent set up to automatically respond and respond in a particular way, David, how are we going to use that to convince the court that this guy knows how to communicate or this girl knows how to communicate properly when it’s not them communicating, right? And so I think that if you start to lose trust in the indicia or evidence of communication, I truly wonder, you know, how we’re going to be able to deal with that outside of just he said, she said regarding verbal communication. But it doesn’t diminish the overall importance and value and impact of communication to relationship.

David Bulitt: Are there certain things that you have found that clients believe are more important in a custody situation, custody determination than they really are, than a court really is concerned about?

Chris Castellano: Yeah, it’s interesting. It ebbs and flows, [00:16:00] certainly. But I think that one of the items that sticks out the most is, oh, well, I know that my child wants to stay with me, wants to stay in the house, wants to stay with me. That is probably one of the more frequent refrains. And I mean, I don’t want to speak for you, but I assume it’s, I assume you share that, but it’s, it’s so frequently raised that they know what the kid wants. And depending on the age, frankly, I find that the courts, it’s not that they don’t care, certainly what the kid wants. It’s that the court is analyzing this on, give me all those factors, give me all the evidence so I can determine what’s best, right? You know, we’re not going to give an eight-year-old all the agency in the world to figure out what is best for them. You know, this is a situation where the adults are in the room trying to figure this out.

David Bulitt: Are there occasions where you have seen that an equal time sharing arrangement can work well and on the other side of the fence likely will not work well?

Chris Castellano: [00:17:00] Yeah. I mean, listen, I’m a big believer in even the cases that seem like they are just, I I mean, you’re throwing mud left and right and it’s real messy. You know, once the dust settles and you resolve a case, the parenting time schedule starts to, you know, you start to get into that groove. Maybe you accept it. I find the cases where a 50-50 does not work well is because, frankly, the parents aren’t, let me preface this by saying, in a situation where one parent is engaged in dangerous activities, whether that’s drinking, drug use, whatever it may be. And it just so happens that they got the custody schedule that they got. I’m not talking about that situation. I’m talking, and what we’re talking about is the general. There’s no particularized facts that stand out that say that this kid should not be in 50-50 custody. I’ve got to tell you, David, most of the times, it’s when one parent just hasn’t gotten past the fact that they’re splitting up, [00:18:00] right? And so they want to continue to fight. And sometimes that ends up being a proxy fight with the child. But really, there’s not a significant difference with how the kid’s doing. And one of the easy litmus tests is, hey, how’s the kid doing in school? Are they thriving? How are they doing in therapy? Is the therapist saying that they’re thriving, they’re doing well, they’re well adjusted? Because you can have all the complaints you want about the other parent, but if the kid’s doing okay, clearly the arrangement must not be too terrible, right? Right.

David Bulitt: Judges, I think, are not likely to change a status quo if the status quo shows that the child is thriving, growing, age-appropriate, those sorts of things, right?

Chris Castellano: That’s right. That’s right.

David Bulitt: So let’s talk a little bit about parents who are on the cusp of potentially getting in, either separating, divorcing, but talking about what should happen in terms of custodial parenting issues. What should they do to prepare [00:19:00] for that?

Chris Castellano: Yeah, you know, I think that what you really need to do, because you’re going to have, you’re disrupting the normal. The normal is being disrupted. You’re going through, you’re establishing what is going to be a new situation for your kid, whether that includes or involves a parent moving out of the house or perhaps a blended family situation that may spur on a modification case, whatever it is, you got to take note of what your routine is right now and how that routine is going to change. And then it’s about taking inventory of what have I done? What is my involvement with the kid? Like I said before, doctor’s appointments, school involvement, activities, driving to practices, games, etc. Piano practice, whatever it may be, take inventory of what you’ve done with the child so you really understand and you could address, again, those factors. How have I exposed the children in a [00:20:00] positive way to extended family, both of my extended family, but also to the other parents’ extended family, which is so critical? Have I impinged upon the ability for the child to have a meaningful relationship with the other side’s parents or siblings or what have you. The court’s going to take an interest in all these different items. And if you’re preparing for litigation, it’s time for you to take stock in those different items to really understand it so that these aren’t a surprise.

David Bulitt: Now, if the folks listening out there are very like soundbites, and I have a takeaway myself, But before I get to mine, let folks know, you know, if you have to draw this down, what you really want them to remember from this discussion.

Chris Castellano: Yeah, just by just by filing divorce, filing for divorce, it entitles nobody to 50-50 custody just as well as it entitles nobody to sole physical [00:21:00] custody. Right. You have to put on your case for custody. And that may be off putting to some that, hey, I’ve been a parent. I know what I’m doing. I don’t need to prove to a judge that I know how to parent. Well, here’s your hot take. Here’s your takeaway. You do. You have to prove to the court that you know what you’re doing and that what you’ve been doing has been proper for the child. Whether you like that or not, that’s the job that is in front of you now.

David Bulitt: Now, let me add one thing to that that isn’t in any books that you’ll read. It’s not in a statute. It’s not any case law. And the baseline for that is a very quick story. And that is several years ago, I was getting ready to try a custody case in a jurisdiction in Maryland with actually a judge who used to be a partner in our law firm many, many years ago before I joined the firm. And that judge came out at nine o’clock, right on the dot is a second hand cross to 12 and said to my client and my client’s spouse and the lawyers, my name is Tom [00:22:00] Smith. I’m a circuit court judge. I was appointed by governor X. I can’t remember who it was at the time. I earn X amount of dollars a year. I got your file 30 minutes ago. And over the next three days, I’m going to listen to you from nine to 1230 and 130 to 430. And at the end of those three days, I’ll listen to what you have to say. I’ll listen to what your witnesses have to say. At the end of those three days, I’ll spend about a half an hour. And then I’m going to make a decision that affects the lives of your children for the rest of their lives. And then once I’ve done that, I’m going to go hit a bucket of golf balls and I’ll probably never think about you again.

Chris Castellano: Now,

David Bulitt: that was a harsh, but it’s not necessarily false. So my takeaway, if I can just sort of jump on your bandwagon is children, when it comes to your children, parents out there, do all you can to try to work it out. Listen to your lawyers, listen to a guy like Chris Castellano, who’s trying to help you find another way, rather than letting a judge, someone in a black robe, make a decision that [00:23:00] will affect the lives of your kids for the rest of their lives. And you’re not going to see that in a book anywhere, but I’m sure you agree with me. When it comes to custody cases, Chris, they give me, kids give me belly aches, money, I don’t lose any sleep over, but custody cases, I tend to either not be sleeping or wake up at three o’clock in the morning thinking about. So, uh, and I’m sure you feel the same. Anyway, that’s my, I digressed, but there you, there you have it, Chris. As always, thanks for joining us. I do want to talk next time folks about how you may come back and look to modify a custody order that’s already been in place for some period of time. We’re going to have Chris come back and talk about that because there’s some different issues that the court looks at some different factors and so forth. But for now, Chris, thanks again. Let everybody know if you would, how they would get ahold of you.

Chris Castellano: Yeah, absolutely. You can contact me at 240-399-7881. That’s my direct line at Joseph, Greenwald & Laake. And you can certainly find me online at jgllaw.com [00:24:00] and just search for me.

David Bulitt: Awesome. Thank you, Chris. Everybody, thanks for listening in. Hope you gathered a lot of information from that. If you have any questions, any concerns, any worries, listen to this again and give Chris Castellano a call. I am David Bulitt and this is JGL Law for You.