Child Custody
General Custody & Access Factors
Maryland law presumes that both natural parents are the natural custodians of their children. The law does not favor either the mother or the father. The information contained herein is intended to provide general guidance on how courts decide custody and access rights in Maryland. Either of the separated parents may petition a circuit court in Maryland for custody of a child. If the parties cannot agree on who should have custody, the court will grant custody either solely to one parent or to both parents.
The law looks at the “best interests” of the child when deciding on child custody and visitation. The “best interests” of the child looks at certain factors to determine what is best for the child or children. Court-ordered custody has two components, physical and legal. Custody and access arrangements are never permanent. As situations change, a parent can always petition the Court to modify a Court order.
Types of Court Ordered Custody and Definitions
Physical Custody
Involves spending time with the child and making day to day decisions about the child’s everyday needs. When the child is under the care of a particular parent, that parent is referred to as the “Custodial Parent.” This is easiest stated as to where the child spends most nights and where the child is registered for school.
Shared Physical Custody
Is when the child has two (2) residences, spending at least 35% of the time with each parent. The court is seeking to change the definition for this at the time of writing. Also, this is a major factor for child support.
Legal Custody
Involves the right to make long-term plans and decisions for education, religious training, discipline, non-emergency medical care, and other matters of major significance concerning the child’s welfare.
Joint Legal Custody
Is where the parents work together and share the care and control of the upbringing of the child, even if the child has only one primary residence. Each parent has an equal voice in making decisions. There are hybrid versions of joint legal custody where one parent may have “tie-breaking” authority (the final word in cases of disagreement), or each parent may have certain areas of decision-making authority.
Sole Legal Custody
A person may be granted sole legal custody, sole physical custody, or both.
Emergency Custody
If you believe there is an imminent risk of substantial and immediate harm to you and/or your minor child, you may wish to consider a request for emergency relief. The specific procedure to request emergency custody can vary from Circuit Court to Circuit Court; however, the emergency custody hearing usually takes place very quickly after filing the request. If you are granted emergency custody, this is a temporary order, and you will need to continue with your case until there is a final order providing permanent relief. While the emergency custody is temporary, it is not the same as temporary custody or pendente lite custody.
Temporary Custody
Temporary custody is also called pendente lite, meaning “pending the litigation”. To formalize custody before you begin litigation, you will need to file for temporary court-ordered custody. Temporary custody will be based on the “best interests” of the child. It is not an “initial” award of custody. Instead, it is temporary custody while you wait for the court to hold a hearing.
“Best Interests of the Child” – Factors the Judge Considers
- stability and the foreseeable health and welfare of the child;
- frequent, regular, and continuing contact with parents who can act in the child’s best interest;
- whether and how parents who do not live together will share the rights and responsibilities of raising the child;
- the child’s relationship with each parent, any siblings, other relatives, and individuals who are or may become important in the child’s life;
- the child’s physical and emotional security and protection from exposure to conflict and violence;
- the child’s developmental needs, including physical safety, emotional security, positive self-image, interpersonal skills, and intellectual and cognitive growth;
- the day-to-day needs of the child, including education, socialization, culture and religion, food, shelter, clothing, and mental and physical health;
- how to:
- place the child’s needs above the parents’ needs;
- protect the child from the negative effects of any conflict between the parents; and
- maintain the child’s relationship with the parents, siblings, other relatives, or other individuals who have or likely may have a significant relationship with the child;
- the age of the child;
- any military deployment of a parent and its effect, if any, on the parent-child relationship;
- any prior court orders or agreements;
- each parent’s role and tasks related to the child and how, if at all, those roles and tasks have changed;
- the location of each parent’s home as it relates to the parent’s ability to coordinate parenting time, school, and activities;
- the parents’ relationship with each other, including:
- how they communicate with each other;
- whether they can co-parent without disrupting the child’s social and school life; and
- how the parents will resolve any disputes in the future without the need for court intervention;
- the child’s preference, if age-appropriate; and
- any other factor that the court considers appropriate in determining how best to serve the physical, developmental, and emotional needs of the child.
If you are interested in seeing the statute in its totality, here is the link to the MD Code, Family Law, § 9-201 for Factors for determining child custody and visitation; findings of fact.:
Parenting Plan
The best interests of the child also come up in the context of parenting plans. A parenting plan is a written agreement about how the parents will work together to take care of the child. The courts are seeking the parents of children to come up with the plan for custody and access to their children. The court now requires the parties to submit a Parenting Tool or Plan to aide the court in determining what is in the best interest of the minor child.
Joint Custody Agreements
Parents can agree on some combination of shared physical and joint legal custody. One example is when there is a single residence for the child, and the parents live with the child there on a rotating basis. The court closely examines Joint Custody agreements. The most important factor in Joint Legal Custody and Shared Physical Custody is the ability of the parents to talk about and reach joint decisions that affect the child’s welfare. If parents are constantly fighting over religion or school, the court may strike down their agreement.
Additionally, the sincerity of the parties involved is important. The court will want to make sure that joint custody isn’t being traded for concessions on other points. Another consideration is whether the grant of joint custody will affect any state or federal assistance programs. Currently, Welfare and Medical Assistance are affected based on the award of Joint Legal Custody. Be sure to check with your contact at any social service agencies before agreeing, or you may risk losing your benefits. This list is not meant to be complete, and the court will hear anything that it believes to be relevant.
What Happens If Both Parents Agree?
If you and the other parent have already reached a fair agreement on custody and visitation, an attorney can draft a Consent Order and/or a Parenting Plan Agreement (PPA). A Consent Order is a draft Order for the judge to sign if the judge agrees to accept your agreement. This means that the court can enforce the agreement in the future.
A PPA may address certain details on the care and upbringing of the child, such as:
- Which holiday does the child spend with you?
- What time and where may the other parent pick the child up?
- What time should the child be returned home?
- What is the procedure to follow if either of you is running late and won’t be there on time?
- How much notice should you be given if they are planning a vacation?
- How far away may the other spouse move?
What you might think you can figure out as you go along could become a bitter disagreement later. The stipulations should state everything that you have agreed upon. You should not rely on verbal promises.
What Happens if Both Parents Disagree?
If you and your significant other are having trouble reaching an agreement, you should consider mediation. A mediator specializes in helping people reach an agreement that is fair and will last. The sessions are confidential. A mediator’s role may be limited to custody. Mediation is not appropriate in cases where there is a genuine issue of physical or sexual abuse of the child or one of the parties. The mediator’s role is not to take sides, but to bring the two sides together.
Unmarried Parents
Many couples who choose not to formally marry often share the same goals as those who do, including having children. Similar to married couples, they may decide at any time to dissolve their relationship. When that happens, unmarried parents need to be aware of the differences in how Maryland family law addresses child custody, visitation, and support.
Generally, when the parents are unmarried, the natural mother is considered the primary caregiver and holds de facto custody. Even if the natural father lives in the same residence as the child, he will need to provide evidence of paternity. In cases where the father lives separately, the court also requires information about how much time he spends caring for the child, and how present he is in the child’s daily life. If living elsewhere, the court will also look at whether the father’s residence is set up to accommodate the child’s needs.
The parents may disagree about custody or visitation rights. However, once paternity is established, neither the mother nor the father is given preference based solely on gender. At this point, the overall well-being of the child will be the court’s standard. Information about each parent’s fitness, ability to provide, and, importantly, the willingness of each to cooperate in the sharing of custody will all be taken into account.
A father can establish paternity by:
- A court determination of paternity
- Acknowledging paternity in writing
- Telling others that the child is his
- Or by marrying the mother and then acknowledging himself as the father, either in writing or orally.
Court Ordered Mediation
The court has the power to order you and the other side to go to mediation.
This is true whether:
- Your case is just starting;
- You are requesting modification of an existing order; or
- You are filing a contempt action.
- You should be aware, however, that if the court orders mediation at the initial proceeding, it will most likely prolong the legal process by stopping all other actions until the mediation is complete. The court will initially order two sessions. However, a mediator may recommend that the court order two additional sessions. You may decide to continue the mediation without the court ordering it. The court also has the power to order one or both parties to pay for the mediation.
Types of Conferences and Hearings
- Scheduling Conference – initial hearing held after all opposing parties have been served. The purpose of this hearing is to determine contested issues, order services, set dates for the case, and determine the proper track for the case.
- Status Conference – is a hearing held by the court to gauge the status of a custody case. The Status Conference is usually held approximately 6 months from the date of filing. The purpose is to inform the court of the status of discovery, whether any motions are pending, the status of settlement negotiations, and any other pending issues.
- Merits Hearing – the final resolution of a case, heard by a Judge or Magistrate, depending on the complexity and length of the case.
Modification of Custody
When a parent seeks to change the custody order, it is the parents’ and their attorneys’ burden to show the court why the order should be changed. The court follows the notion of “if it isn’t broke, don’t fix it.” This is based on the idea that stability is best for the child unless you can show that something in the environment will harm the child’s well-being. This is not as simple as it may seem. You will likely need to show that your home will be better than the custodial parent’s home (not just as good as the custodial parent’s). You must show that there has been a “substantial change in circumstances” and that it is in the child’s best interests to make the change you are proposing. If the two homes are considered equal, custody will remain as it is. Remember, a temporary or pendente lite custody order is not a final order.
Can a child have a say in a custody decision?
Courts will sometimes listen to the wishes of older children. Courts rarely take into account the wishes of very young children. Children who are 16 years or older may petition the court themselves for a change in custody.
When do grandparents, other relatives or third parties have custody or visitation rights?
Generally, the natural parents will have a presumptive right to custody. Only in cases where the parents are found unfit, or there are exceptional circumstances, will third parties be granted custody. At any time after a divorce, grandparents may petition the court for visitation rights.
Jurisdiction
“Jurisdiction” is the set of rules that decides which court hears a case. Jurisdiction is like an imaginary fence that divides legal cases into 2 categories. On one side of the fence are the cases that a certain court can decide. On the other side of the fence are the cases that the court is not allowed to hear. Usually, “jurisdiction” is the reason one court must allow another court to hear the case.
There are two types of jurisdiction: personal jurisdiction and subject matter jurisdiction. The court must have both types of jurisdiction to hear a case. Personal jurisdiction is the power to require a person to appear in court. In Maryland, subject matter jurisdiction over custody and visitation cases lies with the Circuit Courts. If you have a custody case in Maryland, the Circuit Court is where the case will be filed and heard by a judge or magistrate.
A case can be filed in Maryland if:
- The child lives in the state and
- Maryland is the home state of the child (lives in the state, goes to school in-state) and
- The parent has sufficient contact with the state (works, votes, lives, pays taxes in Maryland).
Even though the child is not in Maryland now, a case can be filed in Maryland if:
- Maryland was the child’s home state within the last six (6) months and
- The parent filing for custody continues to live in Maryland
- The child and at least one of the parents have a significant connection with Maryland (live, work, go to school here) and in Maryland, there are more records and witnesses to give evidence of the child’s present or future care, protection, training, and personal relationships.
- The child is physically present in Maryland and was abandoned, or emergency protection is necessary (an emergency means the child was threatened or a victim of abuse or neglect).
Important Disclaimer – Informational Content Only
The information provided on this website, including articles, guides, blog posts, videos, and other materials relating to family law matters such as divorce, custody, child support, and related issues, is intended for general informational and educational purposes only.
The information on this website does not constitute legal advice and should not be relied upon as legal advice for any specific situation. Family law matters are highly fact-specific, and the outcome of any case depends on the particular facts, applicable law, and procedural posture.
Viewing this website, reading its content, submitting information through it, or contacting the firm through it does not create an attorney-client relationship with the Law Office of Rhon C. Reid, LLC.
An attorney-client relationship with our firm is formed only after:
- A consultation has occurred,
- The firm determines that it can represent the individual,
- Any required conflict checks have been completed, and
- A written retainer agreement has been signed and accepted by the firm.
Until a written retainer agreement has been executed and accepted by the firm, the firm does not represent you, and you should not rely on any information on this website as legal advice regarding your specific situation.
If you would like legal advice regarding your family law matter, we encourage you to schedule a consultation with the firm so that we can evaluate the specific facts of your case and advise you accordingly.