How Custody Decisions are Impacted by Technology

May 4, 2017

iMessage, GroupMe, Viber, Snapchat, and WhatsApp are just a few of the mobile apps now used. With the explosion in these technologies especially texting, for example, Courts consider these alternative methods of communication when deciding custody cases.

Communication between parents is a crucial factor in deciding which parent or whether both parents should make important decisions affecting children. In the 1986 Taylor v. Taylor case, Maryland’s highest court saw as “the most important factor” in deciding whether to award joint legal custody the “capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare.” According to Taylor,

[r]arely, if ever, should joint legal custody be awarded in the absence of a record of mature conduct on the part of the parents evidencing an ability to effectively communicate with each other concerning the best interest of the child, and then only when it is possible to make a finding of a strong potential for such conduct in the future.

If parents cannot put their differences aside to have civilized discussions about child-related matters, joint legal custody is rarely awarded. Since 1986, however, there has been widespread use of texting, emailing and other forms of electronic communication making it far easier for parents to communicate.

In July 2016, Maryland’s highest court in Santo v. Santo initiated a shift in the conversation around communication when it comes to joint legal custody. In this case, the Court held that, even if the parents cannot communicate effectively, an award of joint legal custody may be permissible. In Santo, the parents had a history of being unable to communicate civilly.  Nonetheless, they were awarded joint legal custody. The Santo court worked around the parties’ inability to civilly communicate by awarding tie-breaking authority to one parent on specific legal custody decisions.

Whether or not the Santo ruling was influenced by the availability of new technology, it is evident that the availability of new mobile apps and other means of electronic communication has created an environment where there is “strong potential” for civilized dialogue between the parents whether divorcing or already divorced.  Texting, for example, allows parents to communicate while maintaining their physical distance and removing their children from hearing their conversations. Using technology can be a more effective way for divorced parents staying in touch rather than relying on face to face or phone communication.  Anger, stress, and frustration can easily derail phone or in person communications.

By having the ability to send straightforward, written messages, parents can communicate efficiently and effectively without engaging in drawn out, emotional conversations.  Moreover, if communication is limited to writing, each parent is more likely to be careful with the words chosen.  After all, any written communication could appear as a trial exhibit, which is another benefit of using an electronic platform.

As mobile technology evolves and new forms of electronic communication become available, the law will adapt. As an attorney representing a parent seeking joint legal custody, it is important to clearly set out to the court why and how it would be plausible for angry or non-communicative parents to effectively communicate about their child using technology.

For questions on the impact of technology on joint custody in Maryland, please reach out to attorney Carol G. Cooper via email at ccooper@adelberg.com or by phone at 410-986-0852.


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