Can A Trial Court Order In Futuro Custody?

by Paul A. Dorf & Russell G. Alion, Jr.

On February 5, 1998, Paul A. Dorf and Russell G. Alion, Jr., argued before the Court of Special Appeals of Maryland that the Circuit Court for Baltimore City abused its discretion when it ordered custody of a three-year-old child to change automatically from his mother to his father approximately eight years from the date of the order. ARD&H represented the mother in a bitter custody dispute. After a seven-day trial, the judge awarded the mother sole physical and sole legal custody of the child. However, the custody award was only temporary. The trial judge ordered custody of the child to change automatically to the father thirty days after the child completes the fifth grade. Whether or not a trial judge can automatically change custody upon the happening of a future event is an issue of first impression in Maryland.

Mr. Dorf and Mr. Alion argued that there is no authority under Maryland law for an automatic change of custody upon the happening of a future event, such as the occurrence of a birthday or the end of a school year. Maryland law permits a change in custody only if there has been a material change in circumstances and the change in custody is in the best interests of the child. If the Court of Special Appeals upholds the trial judge’s decision, the appellate court would be authorizing the trial court to change custody of a child without determining what is in the best interests of the child at the time of the modification. For example, it is not possible for anyone to determine now that eight years from today it will be in the child’s best interests that his custody change from his mother to his father. A decision is expected from the Court of Special Appeals soon and will appear in our next issue.