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Last page edit 02/05/08
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Children of Unmarried Cohabitants Child Custody and Visitation The National Center for Health Statistics recently released a report showing that in 2005, 36.9% of children were born to unmarried couples. If these couples separate, they have to deal with some of the same issues that divorcing married couples face when it comes to their children. Under Maryland law, unless a court has ordered otherwise, the parents of a minor child are the child’s “joint natural guardians.”[1] This means that they are jointly and individually responsible for the child’s support, care, welfare, and education. After a decree of adoption is entered, each living natural parent of the individual adopted is relieved of all parental duties and obligations and the adoptive parents take on those responsibilities.[2] If the parents live apart, a court may award custody of a minor child to either parent or joint custody to both parents. The standard the court applies in determining custody is the "best interest of the child". Until the court makes a determination, neither parent is presumed to have any right to custody that is superior to the right of the other parent. The decision as to who will have custody of the children can be settled informally by agreement of the parties. However, the court need not respect every agreement reached by the parents, and the court may modify an agreement if the court determines that it is in the child’s best interest to do so. The term “custody” includes two different types of rights and responsibilities, “legal” and “physical.” Legal custody carries with it the right and obligation to make long-range decisions involving education, religious training, discipline, medical care, and other matters of major significance concerning the child’s life and welfare. Physical custody means the right and obligation to provide a home for the child and to make the day-to-day decisions required during the time the child is actually with the parent having such custody. There are a variety of different custody arrangements adopted by the parents voluntarily or through court intervention. In some instances, the parties agree to or the court awards one parent sole custody. This includes both legal and physical custody. In those cases, the other parent is awarded visitation rights. Another possibility is that both parents agree to or are awarded joint custody. In this case, one parent may have sole physical custody of the child(ren) and both parents may share joint legal custody, or the parents may share both physical and legal custody of the child(ren). New terms are beginning to appear in agreements and court orders related to custody. For example, the term access is sometimes used to refer to visitation. The term “primary” may be substituted for the term “sole”. It is not clear how the use of these different terms affect the enforceability of the final custody order. The Best Interest of the Child Standard In making any decisions about the custody of a child, the court must determine what is in the best interest of the child. In cases where sole custody is requested, the court will consider, at a minimum, the following factors:
In cases where joint custody is requested, the court, in addition to the above factors, must consider the following factors: The capacity of the parents to communicate and to reach shared decisions affecting the child’s welfare (this is the most important factor on the list);
As always, even in the case of joint custody awards, the best interest of the child is still the paramount concern. The court may also consider any other factors it deems appropriate. For example, joint custody is not advisable in cases where there has been a history of domestic violence. Furthermore, both parties should seriously consider the practical realities of a joint legal custody arrangement before consenting to one. In many situations, the parent who was originally the primary caretaker and now the custodial parent continues to bear all, or almost all of the child-rearing responsibilities, while the other parent has equal decision making rights. Moreover, if the parties agree to a joint physical custody arrangement, the agreement should include a specific schedule so that the child and the parents know exactly when the child is with each parent. Many problems can occur when an agreement states, for example, “the children will live with each parent on as equal a basis as is practical,” or “the children will live with the mother four (4) nights a week and the father three (3) nights a week.” In some cases, joint custody arrangements are referred to as “parenting plans” or “access schedules”. The parties should consider all of the factors listed above relating to joint custody before consenting to one of these plans. Finally, regardless of whether the label is “joint custody,” a “parenting plan,” or “visitation,” a different formula is used to calculate child support that will significantly reduce the amount of the child support payments owed to the primary caretaker in cases where the child spends 128 or more overnights with the other parent. (See Section B for more information.) Modification of Custody Orders Because the child’s interests are always a matter of state concern, custody decisions and agreements are not final, and may be changed as circumstances change. The ruling may be challenged by a parent, or at the age of 16, by the child. A party petitioning the court for a change in custody must prove that there is a substantial change in circumstances that requires a change in the original custody order. A substantial change can be, for example, that the parent who has sole or primary physical custody intends to move out of state, or that the child is having serious problems in the custodial parent’s care. It is advisable to consult an attorney before filing a Request to Modify a Custody Order to ensure that all of the circumstances that require a change in custody are sufficiently articulated in the court papers. Visitation rights of the parent without custody or non-custodial parent may be set out in a custody agreement between the parties or in the court’s decree. However, the court has the final say as to what is in the best interest of the child(ren). These rights may be as specific as naming certain days when the non-custodial parent may visit a child and the geographic limits within which such visits may take place. Alternatively, visits can be described as at “reasonable and appropriate times.” Sometimes the non-custodial parent discovers, to his or her dismay, that what is “reasonable” may be left solely to the custodial parent’s discretion. Serious concerns must exist for the court to deny visitation rights to a parent. Failure to support, alone, does not justify refusal of visitation rights. Custody & Visitation in Child Abuse Situations If the court in a custody or visitation proceeding has “reasonable grounds” to believe that a child has been neglected or abused by one of the parties to the proceeding, it must determine whether the abuse or neglect is likely to occur if custody or visitation rights are given to that party. Unless the court finds that there is no likelihood of further abuse or neglect by the party, the court must deny custody or unsupervised visitation to that party. In such a case, the court may approve a supervised visitation arrangement that “assures the safety, and the psychological, physiological, and emotional well-being of the child.” Special Issues for Gay & Lesbian Parents Gay and lesbian parents who are not the biological parents of their children may experience special difficulties when it comes to getting custody and visitation after a break up. The law presumes that the child’s best interest is served by placement with the biological parent. Although the court may consider written agreements concerning custody and visitation, the agreements may not be enforceable as a matter of law because the court must always make a custody decision based on the “bests interest of the child.” In issues of custody, a non-biological parent is considered to be a “third-party” to the custody action. The Maryland courts have held that a third party “acting as a parent” might obtain custody instead of a biological parent if a court finds that there are “exceptional circumstances” justifying the decision. A variety of circumstances could constitute exceptional circumstances. For example, the child could have been separated from the natural parents for a significant amount of time; the child may have significant attachments to the third party; or, the child may have an unstable future in the hands of the natural parents. With respect to visitation, the Maryland courts have held that “de facto parents” may be entitled to visitation and need not show “exceptional circumstances.” In order to be deemed a “de facto parent,” a third party must meet the following requirements: the legal parent must have consented to and fostered a relationship between the third party and the child; the third party must have lived with the parent and the child; the third party must have performed parental functions for the child to a significant degree; and, a parent-child bond must have been formed between the child and the third party. S.F. v. M.D., 132 Md. App. 99 (2000). Although it may not be legally binding, a parenting agreement that has been entered into by both the biological and de facto parent may be quite influential to the court. As a practical matter, the agreement serves to establish the necessary criteria for a “de facto parent,” and thus entitle the non-biological parent to petition for visitation with the child. Courts have also used the agreements as guidance in crafting a custody and visitation order. Terms of the agreement should indicate the couple's intention to co-parent, to jointly assume all legal obligations to support and care for the child, to have equal parenting rights and privileges, and what the intentions of the parties are for the child in the event that the relationship terminates. Both parents have a legal duty to support their child according to their ability to do so. Parties can make agreements with respect to child support, however, the court always retains jurisdiction over child support issues, whether child support is agreed to by the parties or ordered by the court. The custodial parent, i.e., the parent with whom the child lives, may file a complaint to collect child support with or without a lawyer. Additionally, that parent may obtain the services of the child support agency in their county or in Baltimore City. Maryland’s Child Support Guidelines In 1990, the Maryland legislature adopted guidelines to assist courts in determining the amount of child support awards. The guidelines provide a formula for calculating child support based on a proportion of each parent’s income. The child support guidelines take the following into account:
The guidelines also take into account the amount of time the child spends with each parent. If the child spends 128 or more overnights with each parent, a different formula is used to calculate child support. This formula results in a reduction in child support owed to the primary custodian. Child support worksheets and copies of the guidelines are available from the Circuit Court Clerk’s office, your local child support agency, or your local pro se courthouse clinic. To estimate child support obligations, go to the child support calculator. Courts in Maryland will apply the guidelines unless a party can show that to apply the guidelines would be unjust and inappropriate in a particular case. The obligation to support one’s children continues until certain terminating events have occurred. Generally, these include when the child reaches the age of 18, becomes self-supporting or gets married, whichever is earlier. A court can modify child support if there is a significant change in circumstances. Possible justifications for modifying child support payments are a child’s serious illness or accident, a parent’s illness or disability, or a sizable increase or decrease in a parent’s income or assets. Marriage by the parent who has physical custody will not terminate payments by the non-custodial parent, unless the non-custodial parent gives up his/her parental rights and/or a stepparent adopts the child(ren). The added financial burdens of either parent’s new family will generally not terminate the duty to support. However, having additional children could qualify as a significant change in circumstances that would justify a modification of child support. Maryland Child Support Agencies Every jurisdiction in Maryland has a child support agency that is required to provide the following services:
The child support agency charges a one-time fee of $25 for these services. Even if the custodial parent has hired a private attorney to obtain child support, it is still advisable to apply for child support agency services. This is because there are a number of collection services that are only available through the child support agency, including:
For the number of the child support office in your jurisdiction, call 1-800-332-6347. If a person is receiving “social services,” now called Temporary Cash Assistance (TCA), the right to pursue child support is assigned to the state and the person is barred from collecting child support from the non-custodial parent while receiving assistance. In these cases, the child support office pursues child support on behalf of the state, which keeps any child support collected. The court has the authority to require a parent to obtain health insurance for the child if the parent is eligible for family coverage through the parent’s employment, and if the child can be included on the policy at a reasonable cost. The requirement would be incorporated in the court order. Also, the court can compel employers and insurers to honor the order to provide health insurance. Employers will not be allowed to remove a child from the policy so long as a court order is in effect, unless alternative coverage has been obtained, the employer has terminated family coverage for all employees, or the parent-employee has left the company and is no longer eligible for insurance. Employers also have the responsibility of notifying the child support agency and both parents of the date of enrollment and/or any reasons why they cannot comply with the order. Child support is not taxable to the recipient. It is also not tax deductible from the income of the paying parent. The Maryland Paternity Act[3] provides a means by which paternity can be established and the basic obligation for support of children between unmarried parents can be enforced. Only the birth mother or the Bureau of Support Enforcement of the Social Services Administration or a person whom the Bureau approves for child support services can petition the Circuit Court for a paternity proceeding. The Maryland State’s Attorney can represent the mother and may request any individual summoned for a paternity lawsuit to submit to a blood or genetic test. If the individual does not submit to a blood or genetic test, the State’s Attorney may apply to the Circuit Court for an order requiring a test. A private attorney may also initiate these proceedings. The courts will assume paternity where a genetic test indicates a 99% or greater statistical probability that a party is the biological father of a child. Also, the courts can enter a judgment of paternity against a father if he fails without “good cause” to show up in court to contest the action, as long as sufficient evidence is presented to support the finding of paternity. Mother’s Declaration for Child Support Purposes If the defendant is found to be the father, the court passes an order declaring him to be the father of the child and providing for the support and maintenance of the child. The court may place a lien upon the father’s earnings, so that his employer deducts support from his regular wages and pays it directly to the person designated by the court. The court may also provide in the order the amount that the mother must contribute to the child’s support and maintenance; and it may include any other provision pertaining to custody, guardianship, visitation and other matters that may be for the “general welfare and best interests of the child.” The paternity action is in the Circuit Court. The defendant is entitled to a jury trial if he elects one, and may not be required to testify. The paternity procedure is very detailed and specific. Therefore, it is advisable to consult an attorney or the State’s Attorney’s regarding this procedure. Father’s Declaration to Protect His Rights A putative father may bring an action in Circuit Court for a declaration that an illegitimate child is his child. It is not necessary to obtain a judicial declaration of filiation for purposes of legitimating a child. Legitimacy based on acknowledgment and recognition (see Inheritance Rights below for more information) is achieved by acts, declarations and admissions by the father outside of a judicial proceeding. However, if the father wants to protect his rights as a father, and have his child’s legitimacy determined by a court of law, he may bring a declaratory action. He would then use his written acknowledgment or his “open and notorious” recognition of the child as evidence of his paternity. Unmarried parents may give their child whatever name they wish. Their child may have either the mother’s or the father’s surname, or another surname altogether. The name they choose will be recorded on the birth certificate. If the parents marry one another after the child’s birth, or a court proceeding decides the child’s parentage, and satisfactory proof is furnished, the State Department of Health and Mental Hygiene must issue a new birth certificate.[4] The same is true when no father is named on the birth certificate, and later the father acknowledges himself, by affidavit, to be the father. The mother must consent by affidavit to this acknowledgment. Where paternity has been established by legal proceedings, the name of the father will be inserted. Changing the Child’s Legal Name In Maryland, a person, either an adult or child, may change his or her name freely using the common-law rule, or by initiating a court proceeding. If the common-law method is used, all a person has to do is to assume a new name and use it consistently, openly and non-fraudulently, without interfering with other people’s rights. Keep in mind that this may not work for situations that require an official document as proof of identity, e.g., school registration. If the judicial procedure is used, a person must file a petition with the Circuit Court setting forth the name change desired and the reasons for it. Proper publication of notice of the petition must be made. Children may change their name by either method. However, if the judicial method is used, a parent, legal guardian or next friend on behalf of the child must file the petition. Proper publication of notice of the petition must be made. Interested persons (such as the other parent) are free to file affidavits in opposition to the change. Likewise, an interested person is free to challenge the common-law right of the child to make the change, by filing an action in Circuit Court for an injunction to restrain the child from using a new name. Whenever the court is involved, either under the name change statute or under the common-law rule, upon objection by a proper person, it must look to the substantial welfare of the child and reach a decision based on what is in the child’s best interests. The child’s preference is only one factor to consider in the ultimate decision. The inheritance rights for the children of unmarried cohabitants depend upon whether the children are illegitimate or legitimate. For example, when there is no will, an illegitimate child cannot inherit property from his or her father and generally is not entitled to benefits available upon their father’s death. According to Maryland law, a child born to unmarried parents is considered the child of his or her mother.[5] The child can inherit from the mother, and the mother can inherit from the child. To legitimate a child for purposes of inheritance and benefits, the father must do one of the following:
For unmarried cohabitants who have children together, the estates and trust laws suggest that something more than living together is required to vest inheritance rights and a right to death benefits. A child who has not been legitimated will not be able to recover Social Security benefits upon the death of his or her insured father, unless the child can show he or she was “dependent” on the father at the time of his death. A “dependent” child is one who was living with or was supported by the deceased wage earner at the time of his death. Legitimate children are conclusively presumed to be dependent. Maryland Workers’ Compensation Act The surviving child of an unmarried parent who died from injuries arising in the course of his or her employment is entitled to workers’ compensation benefits, if the child was dependent on the deceased employee at the time of the injury. (See Benefits, Insurance, Inheritance and Taxes.) The child need not be legitimate to recover benefits. Federal courts usually look to state laws controlling inheritance to determine whether a child born of unmarried parents can receive benefits. Thus, in Maryland, a child would have to be legitimated by one of the four methods in Section E (1) above in order to recover benefits upon the death of his or her father. If the mother dies and benefits are available to her survivors through a federal compensation law, the child does not have to be legitimated to recover. An unmarried cohabitant is not prohibited from adopting another person, either a child or an adult. Maryland law states that a person petitioning to become an adoptive parent cannot be denied a decree of adoption solely because he or she is single or without a spouse.[7] In an action to adopt a child, the final decision must serve the best interests and welfare of the child. Most jurisdictions in Maryland require an in-depth home study in each adoption case filed. This is usually conducted under the auspices of the court or a social service agency. Unmarried cohabitation will be a factor in the investigator/ social worker’s report and recommendation to the Court on whether the adoption should be granted. Likewise, Maryland law does not preclude an adoption by a gay or lesbian person, but a prospective adoptive parent’s sexual orientation may be a factor in the agency’s report and recommendation. Joint adoption by two unmarried cohabitants is neither precluded nor permitted by Maryland law, thus each case is subject to the court’s interpretation of the law. Unique issues arise in cases where one of the cohabitants is the biological or adoptive parent of the child and the desire of the parties is for both cohabitants (parents to the child) to be legal parents. Maryland law provides that after a decree of adoption is entered, the natural parent is relieved of and divested of all parental duties and obligations as to the adopted individual. A special exception is created where the adoption is by the spouse of the natural parent (a stepparent adoption). Some courts have allowed the biological and “second parent” to jointly adopt the child, thus granting them both equal legal parental rights to the child. Seek legal counsel for additional information. [1] Md. Code Ann., Family Law § 5-203 (1991). [2] Id. § 5-308. [3] Md. Code Ann., Family Law § 5-1001 et seq. (1957). [4] Md. Code Ann., Health-General § 4-208 (1957). [5] Md. Code Ann., Estates and Trusts § 1-208(a) (1957). [6] Md. Code Ann., Estates and Trusts § 1-208(b) (1957). [7] Annotated Code of Maryland, Family Law Article Section 5-309. |
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| Source: This section is drawn from the booklet entitled "Legal Rights of Unmarried Cohabitants in Maryland" produced by and available from The Women's Law Center. Updated 7/10/01. |
Last Legal Update 02/05/08 (PLL/M.A.J.) |
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