Child Custody 101
There is no automatic presumption about which parent will be granted custody of a minor child or children. Both the mother and the father start out on equal footing under the law. Similarly, there is no automatic presumption that joint custody will be granted, though the judge will likely consider it as an option in many cases.
Best Interest of the Child Standard
A judge making decisions in a custody proceeding considers the best interests of the children to be the paramount concern. Neither parent begins with any greater right to custody than the other parent, and judges have great discretion in determining custody arrangements. A judge can consider anything that is relevant to parenting. While some statutes and case law provide a list of factors to be considered, the judge will take into account all of the facts and circumstances surrounding the mother and father, their home, and their care of the children, and how such facts and circumstances may affect the children.
Legal Custody vs. Physical Custody
It is important for any parent facing a custody or visitation case in Maryland to understand the differences and similarities between the different types of custody and various custodial arrangements under state law. There are two types of custody to be decided in a custody proceeding - legal custody and physical custody. Within each type of custody, there are various possible custodial arrangements.
“Legal custody” refers to which parent gets to make important decisions on behalf of the children. Such decisions can include matters pertaining to medical treatment, education, religion, discipline, and any other important issues. Legal custody does not refer to where the children physically live.
Sole legal custody refers to the situation where one parent has legal authority to make all decisions on behalf of the children. The other parent does not have any power to decide on education, religion, discipline, medical treatment and other major issues affecting the children, although the legal custodian may choose to involve the other parent in these decisions.
Joint legal custody refers to the situation where both parents share legal authority to make decisions on behalf of the children. In this situation, both parents must work together to determine the proper approach to education, religion, discipline, medical treatment and other major issues affecting the children.
“Physical custody,” sometimes referred to as residential custody, dictates where the children physically reside or live. The parent with whom the children live has the power to make day-to-day decisions, such as meals, routines and bedtime. As previously noted, however, only a parent with legal custody has the ability to make larger decisions on behalf of the children.
Each case is unique and there are no standard physical custody arrangement the court is required to order; however, a parent with whom the children live a majority of the time is commonly referred to as having primary physical custody, while the other parent has custodial access (or visitation) on a set or flexible schedule.
Joint physical or residential custody refers to the situation where children split their time living with both parents. Joint physical custody can mean a 50/50 split; but it can also mean an uneven split that is appropriate for the children (for example, an arrangement where the children live with one parent 40% of the time, and the other parent 60% of the time).
Split custody only applies to families with several children. In a split custody arrangement, the children are divided between the two parents. In other words, one parent will take primary physical custody of at least one of the children, and the other parent will have primary physical custody of the remaining children.
Although it sounds similar to joint custody, “shared custody” refers to a specific situation involving child support. When each parent has at least a defined number of overnights with the children (the number is different in each jurisdiction), then their respective obligations for child support are calculated using shared custody guidelines, and to give each of them credit for the time spent with the children.
How is the Custodial Arrangement Decided?
While the best interest of the children is the overriding concern in any custody case, there are various factors that may guide the court in deciding what custodial arrangement is appropriate, including the fitness of the parents, the ability of the parents to work with each other affecting the children, the historical care-giving responsibility of each parent, the relationship established between the parents and children, the reasonable preference of the children, etc.
Custodial Access, Visitation and Parenting Time
Just because a parent is not awarded primary physical custody does not mean that he or she will not get to have a relationship with the children. Parents who are not awarded primary physical custody may seek visitation and parenting time. The court has significant discretion in awarding custodial access, even if the parents had previously agreed that there would be no visitation.
Modification of Child Custody and Visitation
Custody and visitation issues are never permanently resolved until the children are adults and no longer under the court’s jurisdiction to decide custody, at which point they are free to spend time with their parents as they wish. As children get older, parties remarry, and priorities change, a modification of custody and visitation may be required.
The law allows for a modification of a custody or visitation order when there has been a material change of circumstances affecting the children and it is in the best interest of the children to modify the custodial arrangement. The change of circumstances must have taken place after the date of the last custody order in the case, and it cannot be based on testimony or evidence that occurred before the entry of the last order.
Contact a KGO Child Custody Lawyer
Krum, Gergely, & Oates, LLC is an award-winning law firm located in Rockville, Maryland, with years of experience handling child custody and visitation proceedings throughout the state. If you are facing a child custody case in Maryland, contact a KGO family law attorney today for a consultation to discuss your specific situation.