1. CHILD CUSTODY Part II March 11, 2004

2. Review History – paternal/maternal presumptions to gender neutral “best interests” Terms – joint/sole; legal/physical Trends – Process: Adversarial Trial to Parenting Plans/Mediation Standards: Where private ordering fails, replace broad discretionary “best interests” w/approximation standard or other rule

3. Best Interests of Child Standard Are there limits to court’s discretion when considering certain factors? –Gender –Race –Religion

4. Gender Tender Years Presumption Violates Equal Protection Clause Equal Protection Clause and MD ERA prohibit Ct from presuming “that a girl child of a certain age has a particular and specific need to be with her same sex parent” (Giffin v. Crane, 351 Md. 133 (1998))

5. Race Consideration of race as sole factor in custody decisionmaking violates equal protection (“The effects of racial prejudice, however real, cannot justify a racial classification removing an infant child from the custody of its natural mother found to be an appropriate person to have such custody,” Palmore v. Sidoti, 466 U.S. 429 (1984)(emphasis added)).

6. Religion Courts may consider religion in custody case but free exercise and establishment clauses prohibit interference w/parental decisions concerning religion unless child’s welfare is affected.

7. Custody Best Interest Standard in MD (Parent/Parent) Broad, multi-factor standard drawn primarily from case law 1.Fitness of parties 2.Character and reputation of parties 3.Preference of child 4. Material opportunities 5.Age and gender of children 6.Residence of parties/opportunities for visitation 7.Length of separation of parents Continuity of Care?

8. Only Statutory Factor: Evidence of abuse against the other parent, the party’s spouse, or any child residing in party’s household (§9-101.1)

9. Study of Family Law Cases in MD Profile Number of cases reviewed2,573 Absent/dismissed cases 726 Number of cases analyzed1,847 In Baltimore Metropolitan area 983 Cases with children1,022 Divorce cases1,687 Woman as plaintiff1,127 Man as plaintiff 720 Third party custody cases 39

10. Profile of divorcing families Women are filing first in 62% of the cases Length of marriage –10-19 years32% –5-9 years27% 55% have minor children –63% had only one child Most common ground for divorce granted: voluntary separation (53%)

11. n= 1022 (all cases with children) Where were the kids?

12. What type of custody are they asking for?

13. Breakdown of custody awards n= 1022 (all cases with children)

14. Breakdown of custody awards (combined)