Child Custody in Maryland

Child Custody in Maryland

There is no automatic presumption about which parent will be granted custody in Maryland. 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 in Maryland 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; Maryland statutes and written laws don’t provide a specific list of factors that the judge must consider. Instead, Maryland law allows the judge to 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 in Maryland

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 Maryland custody proceeding, legal custody and physical custody. Within each type of custody, there are various possible custodial arrangements.

Legal Custody in Maryland

“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 in Maryland

“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.

Shared Custody in Maryland

Although it sounds similar to joint custody, “shared custody” refers to a specific situation involving child support in Maryland. When each parent has at least 35% of the overnights with the children, 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. These factors stem from a variety of notable custody cases decided in the Maryland Court of Appeals and Maryland Court of Special Appeals, and include the following:

  1. The fitness of the parents;

  2. The character and reputation of the parties;

  3. The requests of each parent for custody and the sincerity of the requests;

  4. Any agreements between the parents;

  5. Willingness of the parents to share custody;

  6. Each parent’s ability to maintain the child’s relationships with the other parent, siblings, relatives, and any other person who may psychologically affect the child’s best interest;

  7. The age and number of children each parent has in the household;

  8. The preference of the child, when the child is of sufficient age and capacity to form rational judgment;

  9. The capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare;

  10. The geographic proximity of the parents’ residences and opportunities for time with each parent;

  11. The ability of each parent to maintain a stable and appropriate home for the child;

  12. Financial status of the parents;

  13. The demands of parental employment and opportunities for time with the child;

  14. The age, health, and sex of the child;

  15. The relationship established between the child and each parent;

  16. The length of separation of the parents;

  17. Whether there was a prior voluntary abandonment or surrender of custody of the child;

  18. The potential disruption of the child’s social and school life;

  19. Any impact on a state or federal assistance;

  20. The benefit a parent may receive from an award of joint physical custody, and how that will enable the parent to bestow more benefit upon the child;

  21. Any other consideration the court determines is relevant to the best interest of the child.

Practical Considerations in Maryland Custody Cases

In any custody case, it is crucial for a Maryland child custody lawyer to consider each of the factors enumerated above, and how they may affect the court’s determination of a custodial arrangement. Beyond the factors, the following practical considerations must be taken into account:

The Status Quo

The power of the status quo can’t be overstated. If one party stays in the marital home with the children, they will start with a leg up. That parent can argue that the children are comfortable in a familiar environment, with established neighborhood friends nearby and the peace of mind found in maintaining the same school. The court will typically strive to make a custody case as painless for the children as possible, and believe that continuing similar routines in familiar places will aid in the transition.

Primary Caregiver

The court will want to hear which parent is primarily responsible for day-to-day events and activities with the children, including medical care (doctor’s appointments, prescriptions), educational involvement (homework, parent-teacher conferences, field trips), extracurricular activities (coaching Little League, being a Girl Scout den leader, driving responsibilities), morning and bedtime routines, and even meals and laundry. Obviously, a stay-at-home parent will have an advantage in most of these categories, but that can be overcome by some of the other factors. 

The Parent/Child Relationship

The court will also strongly consider the bond between each parent and the children. This is often difficult to quantify, but evidence of having activities with the children (going for hikes, building model trains together, reading bedtime stories, watching sports together) can help to demonstrate a strong and lasting connection. In some cases, one parent takes steps to actively degrade the children’s relationship with the other parent. This parental alienation, if proven, will have a significant impact on any custody determination.

Which Parent is More Likely to Co-Parent Willingly and Effectively? 

If one parent seeks to destroy the other parent’s relationship with the children, and it can be proven, the court will not take kindly to such behavior. Which parent is more likely to keep the other in the loop on meetings, recitals, practices and games for the children? Who is more likely to copy the other parent on emails with teachers or administrators? Which parent will willingly consult with the other before making an important decision in the child’s life? Has either parent disparaged the other in the presence of the child, or allowed others to do so? Has either parent used the child as a messenger for inappropriate information from parent to parent? The court will typically want to reward good behavior and punish bad behavior, and that usually means hesitating to award primary physical custody to a parent who will abuse that power to the detriment of the other parent and the children.

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, or what is often called “custodial access” in Maryland. 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.

Maryland law allow 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 Wayside Legal Child Custody Lawyer

Wayside Legal LLC is an award-winning law firm located in North Bethesda, 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 Wayside Legal attorney today for a consultation to discuss your specific situation.