Washington Times

Fireman's appeal for custody rejected

Matthew Cella
THE WASHINGTON TIMES
Published January 9, 2003

The Maryland Court of Special Appeals yesterday ruled that a D.C. firefighter cannot have joint custody of his children because his shift-work schedule is bad for them.

The ruling, which upheld a lower court decision, comes just over a year after Lt. Gerald E. Burton, a divorced D.C. firefighter, took the case to the appellate court after he lost joint custody of his son and daughter in July 2000.

Prince George's County Circuit Judge Larnzell Martin ruled then that Lt. Burton's regular schedule of 24 hours on and 72 hours off duty would be disruptive to his children.

"I'm still kind of numb," Lt. Burton said yesterday of the state court decision.

A June 2000 ruling had found that "both parties were fit and proper persons to have care and custody" of their son and daughter, and a judge, in granting joint custody, insisted that Lt. Burton change his work hours to a five-day, 40-hour schedule.

Lt. Burton told Judge Martin he would be reassigned to an administrative position with a five-day schedule, but he lost custody of the children a month later with his work hours in dispute. The appellate court said in its ruling released yesterday it had no evidence any transfer had ever taken place.

The appellate court did not speak to the trial judge's ruling that Lt. Burton's schedule was disruptive for his children, but affirmed the ruling.

"In making that ruling, the court determined that there was already a potential for disruption in the children's social and school lives because they do not have 'one place where they do everything,'" the appellate ruling states.

"The court found that this disruption would be amplified if Mr. Burton were to work a 24/72 shift. The court further found that a 24/72 shift schedule would be a demand of employment that would interfere with the ability of the parties to jointly parent their children."

The court also ruled that the practice of swapping shifts among firefighters was not adequate to ensure that Lt. Burton could be with his children to fulfill joint custody obligations, despite the testimony of a fire department supervisor that the practice is widespread and reliable.

The court said there was "no error in the trial court's determination that it was not in the best interests of the children to have their schedule based on Mr. Burton's ability to exchange duty hours with other firefighters."

"This is ridiculous," said Lt. Ray Sneed, president of the D.C. Firefighters Association. "This is going to affect every shift worker — not just firefighters."

Lt. Sneed said a "large segment" of the fire department is single parents, including about 60 women. He said the decision could have a chilling effect on recruitment and retention of firefighters nationwide.

"You could say they're not good parents based on this decision," Lt. Sneed said.

Since the case was heard by the Court of Special Appeals, Lt. Burton has been promoted to an administrative position with a five-day work schedule.

Lt. Burton, who lives in Lanham and has worked for the department for 16 years, can appeal the ruling to the Maryland Court of Appeals, the state's highest court.

He said he hopes to decide by the end of the week. He said he has spent about $20,000 on the case so far and is not sure he can afford to keep going.

"I'll just have to decide whether to appeal or to move on," he said. "People have been very supportive. That's the blessing of it."

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