In a decision that firefighters fear will turn courts against them in custody battles, a state appeals court agreed yesterday with a Prince George's County judge who said it would be wrong for two children to have a custody arrangement that revolves around their firefighter father's ability to informally swap work shifts with other firefighters. The Court of Special Appeals ruling cannot be cited as a precedent because it is unpublished.
But Ray Sneed, president of the firefighters union in Washington, worried that word of it could lead people to recoil from fire department careers over fears that failed relationships could force them to choose between family and the shift work common to more than 95 percent of the fire service.
George Burke, spokesman for the International Association of Fire Fighters, which sought unsuccessfully to intervene in the case, said, "It would be a shame for any firefighter to be penalized because of his or her job."
The case involved a custody dispute between Washington firefighter Gerald L. Burton and his former wife, Diedre F. Burton, over the custody of their children, now ages 7 and 6.
Prince George's County Circuit Judge Larnzell Martin Jr. ordered joint custody in July 2000 based on the firefighter's telling him that he was moving from a schedule of one day on, three days off to a 9-to-5 type of workweek.
Less than a month later, Diedre Burton sought sole custody, saying her ex-husband did not have a new schedule.
At a hearing, the firefighter told the judge that he was relying on informally trading work hours with other firefighters, an arrangement typical in firehouses around the country.
The judge said that basing a custody arrangement on an informal practice was unreasonable. He awarded Diedre Burton sole custody and said the "linchpin" of his earlier ruling was that Burton had told him his schedule had changed when it had not.
In upholding that decision, the three-judge Court of Special Appeals panel said, "Contrary to Mr. Burton's argument, the trial court did not hold Mr. Burton to a higher standard than other working parents. Rather, it held Mr. Burton to his sworn testimony.
"We find 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," the judges wrote in an unsigned opinion.
Burton, a Lanham resident, said yesterday that he was unsure whether he would ask the Court of Appeals, the state's highest court, to review the ruling. He is allowed to have his two children about eight days a month, he said.
"The official record does not accurately reflect when someone actually works," he said. Officially, he was working seven 24-hour days a month, but in practice he was able to work a more typical schedule most of the time.
A month ago, the firefighter's schedule changed to a more routine workweek, which would give him a reason to seek a change in the custody arrangement. He conducts internal investigations.
Diedre Burton and her lawyer, Dominique S. Johnson, contend that the case is not about firefighters' hours but rather about the veracity of what is said in court. "It is not a case about someone's occupation," Diedre Burton said.