Custody Spotlight: McDermott v. Dougherty

Author: Gregg Mosson | | Categories: Attorney , Civil Litigation , Family Law , Family Law Attorney , Legal Consultation , Towson Law Firm

Family Law Lawyer Maryland

When parents are splitting up and share minor children together, there are legal decisions to be made concerning physical as well as legal custody. 

In McDermott v. Dougherty, 385 Md. 320, 335 (2004), the Maryland Court of Appeals held that a father's employment taking him out of state for periods at a time could not be held against him when determining custody, as long as the father made responsible provisions for the care of the child while he was away. 

The state's highest Court held that a parent's employment, often a matter of economic necessity and for the benefit of the entire family, cannot constitute an "exceptional circumstance" to justify removing the child from the father's custody where the father generally provides for his child, including for the arrangement of caretakers while at work.

Under Maryland law, "legal" custody involves decision-making about important issues such as religious practice, education, major medical decisions, and non-school activities.  Likewise under Maryland law, physical custody involves the issue where children reside.  The determination of 'primary, share, and sole custody' is counted based on overnights, while custodial 'visitation' can refer to any time.

McDermott v. Dougherty involved a father in the merchant marines.  The maternal grandparents sought permanent custody of his son.  He cared about his son, but his best work opportunity involved being at sea.  He lost at trial, but the state's highest court reversed that decision as legal error.  As the Court of Appeal stated, “[c]ourts cannot preempt the established and constitutionally-protected fundamental rights of a parent” due to a parent’s employment where in the context the parent acts responsibly in arrange for his/her child’s care.  Id. at 435.

McDermott v. Dougherty protects parents who have work obligations and act responsibly. The precedent states that work obligations cannot be the sole reason to deny a hard-working parent custody.


Gregg H. Mosson, Esq.

Mosson Law, LLC


Mosson Law, LLC, represents parents in custody and divorce disputes, and employees in employee rights matters, including owed wages, FMLA, ADA, retaliation, and discrimination claims.