Child Custody in Maryland
The question of “Who gets custody of the kids?” is one of the most difficult decisions for parents and their children when parents separate. When child custody arrangements are being decided, the Court considers two types of custody: physical custody and legal custody. Physical custody refers to where the child lays his or her head at night. It is important to know that, absent extreme circumstances, both parents will share time with the child(ren) and in many cases some type of shared physical custody arrangement may be best for the child. Legal custody determines who will be responsible for making the important decisions in the child’s life. This includes decisions regarding education, medical treatment, and religion.
As long as both parents have acted responsibly in their role are parents, the Court prefers to keep both parents involved in raising the child as much as possible. What that looks like depends on the family.
The “best interests of the child” is the standard that Courts use to determine child custody. It is important to understand that the convenience or desires of the individual parents are not important to the Court especially if those desires are based on the parents’ conflict with one another. Therefore, the Court will evaluate what type of parent not what type of spouse you each were/are. Courts use a number of factors in determining the best interest of the child:
- Primary Care Giver – Who is the person who takes care of the child? Who feeds the child, shops for their clothes, gets them up for school, bathes them, and arranges day care? Who does the child turn to when they get hurt?
- Fitness – What are the psychological and physical capacities of the parties seeking custody? The Court may also consider evidence of abuse by a party against the other parent, the party’s spouse, or any child residing within the party’s household (including another child).
- Character and Reputation
- Agreements – Is there a custody agreement already in place?
- Ability to Maintain Family Relationships – Who will be able to keep the child’s family most intact? Who is going to let the child speak with their ex-mother-in-law, for example? Who will not penalize the child for any adverse action on the part of the other parent?
- Child Preference – The decision of the Court may be considered reversible error if they won’t hear the child’s preference. However, the Court has the discretion to interview the child out of the parents’ presence. A child as young as 5 or 6 years of age may be heard. Though it is rare, the Court will hear from a child less than 7 years old. The child’s ability to tell the truth from fiction and maturity will be the guideline for whether a child may be heard. A child of 10 or 12 years of age is certainly entitled to have their opinions heard and given weight in legal proceedings about custody. Additionally, the Court has the power to appoint an attorney for the child in contested cases.
- Material Opportunity – Which parent has the financial resources to give the child more things?
- Age, Health and Gender of Child
- Residences of Parents and Opportunity for Visitation – How close do the parents live to each other? How close do they live to members of the child’s extended family? Which parent lives closest to the child’s school and social circle?
- Length of Separation- how long has the parent been separated from the child?
- Any Prior Abandonment or Surrender of Custody – Is there a history of one parent walking out and leaving the other parent to cope with the child and the home? Which parent left when you last broke up?
- Religious Views – These will be important in the Court’s decision only if you can show that religious views affect the physical or emotional well being of the child.
- Disability – In 2009, The General Assembly passed a bill explicitly limiting the relevance of a party’s disability in a custody proceeding to the extent that the disability affects the best interest of the child.
If one parent is awarded sole physical custody of a child, the other will typically receive an award of parenting time or access/visitation. Very often, such an award involves spending time with the children every-other weekend, one or two evenings per week, half of all holidays and non-school days during the academic year, and a number of weeks of uninterrupted vacation time during the summer months. However, there is no set formula and a Court will give as much time to the other parent as possible provided that is best for the child(ren).
Custody is never considered final by the Courts. As situations change, parents can petition the Court to modify custody.