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HEADNOTE No. 30 - September Term, 1997 James M. Giffin v. Donna L. (Valtri) Crane [ISSUE - FAMILY LAW - IS THE GENDER OF THE PARENTS A VALID CONSIDERATION IN DETERMINING CHILD CUSTODY?

IN THE COURT OF APPEALS OF MARYLAND NO. 30 SEPTEMBER TERM, 1997 _________________________________________

JAMES M. GIFFIN

v.

DONNA L. (VALTRI) CRANE

_________________________________________

Bell, C. J. Eldridge Rodowsky Chasanow Raker * McAuliffe, John F. (Retired, Specially Assigned) *Karwacki, Robert L. (Retired, Specially Assigned) JJ. _________________________________________ Opinion by Bell, C. J. Raker, McAuliffe, and Karwacki, JJ., dissent. ________________________________________ FILED: September 8, 1998

James M. Giffin, the petitioner, and Donna L. (Valtri) Crane, the respondent, the parents of two daughters, Emily Stoughton, born December 22nd, 1982, and Sarah Ellen, born June 26th, 1988, separated in May, 1992, after more than 12 years of marriage. At separation, the petitioner and the parties' two daughters remained in the marital home, while the respondent lived nearby and maintained regular visitation with the children. A year later, the respondent moved to Louisville, Kentucky. Both parties sought to obtain a divorce. The petitioner filed his complaint for an absolute divorce first, in the Circuit Court for Montgomery County, alleging voluntary separation in excess of one year, or, in the alternative, separation for more than two years. The respondent countered by filing her complaint for divorce on the grounds of voluntary separation in excess of one year. The petitioner and the respondent both asked for custody of the two children, child support, and attorney's fees. The custody and visitation issues were resolved by the parties when they entered into, and placed on the record, a written agreement, "intended to resolve all issues between the parties as to the custody of their children, but to leave to the court decision on the issue of child support and attorney's fees."1

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The custody agreement provided, in pertinent part : "1.1 The Husband shall have sole physical custody of the minor children, and the parties shall share their joint legal custody. The parties will attempt to agree on a mutually acceptable visitation schedule consistent with the activities and schedules of the children, but if they cannot agree, the Wife's access to the children shall be according to the schedule provided in paragraph 1.5.
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"Each party shall have reasonable telephone access to the children when the children are with the other parent. The parties agree that they will confine their calls to the time between 7:45 PM and 9:15 PM each evening and after 9:00 AM on weekends. Each party will respect the privacy and time of the other when the children are with the other parent. "1.2 The parties recognize that their children, Emily and Sarah love them both, that the well-being of their children is the paramount consideration of both parents, and that this well-being requires that their children have the companionship of both parents and that both parents will participate in their children's lives. They will consult with one another on matters of substance involving their children, including but not limited to matters of health and education. Each parent will make a good faith effort to inspire in the minds of their children love and respect for the other parent. "1.3 Neither party shall unilaterally make any substantial decisions affecting the welfare of the children or enter into any contracts regarding such decisions without prior consultation with the other party . . . . * * * *

"1.6 The parties agree that the Husband shall have the use and possession of the family home under the following terms and conditions: "a. The parties stipulate that in the event that the Court makes a determination as to the value of marital property, the residence shall be included in such valuation. "b. If the Court makes a determination as to the value of the residence, then the Husband shall have the option to purchase the Wife's share for a period of two years from the date of this agreement."

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In addition to maintaining the status quo with respect to the petitioner's being the children's custodian - the petitioner had sole physical custody of both minor children - the agreement provided for joint legal custody. The agreement also contained detailed and comprehensive provisions concerning the respondent's visitation with the children. The agreement contemplated the possibility of annual reviews of the residential status of the children, to be conducted, at the requesting party's expense, by a mental health professional as to whom the parties agreed. With respect to such reviews,

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