The question of "Who gets custody of the kids?" is one of the most difficult decisions for parents and their children, when parents separate.
Under Maryland law, both natural parents are the presumed natural custodians of their children. The law does not favor either the mother or father. The law looks at the "best interest" of the child standard when deciding on child custody and visitation. The "best interest" of the child standard looks at certain factors to determine what is best for the child(ren). This standard will be discussed later. While grandparents and others may seek custody, the presumption in favor of the natural parents can make it difficult.
Custody and visitation are never permanent. As situations change, a parent can always petition the Court for modification of a Court order. This article is designed to give you general information on how courts decide custody and visitation rights in Maryland.
Types of Custody
Either of the separated parents may petition a circuit court in Maryland for custody of a child. If the parties cannot agree about who should have custody, the court will grant custody either solely to one of the parents or shared between parents.
De facto custody
"De facto" (means "in fact") custody refers to who actually has custody of the child before the court is involved.
Types of court ordered custody
Temporary Custody - Temporary custody is also called pendente lite, meaning "pending the litigation". In order 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 standard. It is not an "initial" award of custody. Instead it is temporary custody while you wait for the court to hold a hearing. In order to be awarded temporary custody you must file a request for hearing and an Order for Temporary Custody and Support along with your Complaint for Custody or Divorce.
Legal and Physical Custody - All court ordered custody has two components, legal and physical. Legal custody involves the right to make long range plans and decisions for the education, religious training, discipline, non-emergency medical care and other matters of major significance concerning the child's welfare. Physical custody involves spending time with the child and making decisions about the child's everyday needs. The court may order legal and physical custody in a number of ways.
Sole Custody - A person may be granted sole legal custody, sole physical custody, or both.
Split Custody (of 2 or more children) - Split custody is easiest to describe in a situation where there are two children and each parent obtains full physical custody over one child. Some of the considerations that may bring about this result are age of the children and child preference.
Joint Custody - Joint Custody is actually broken down into three categories: Joint Legal, Shared Physical, and Combination.
Joint Legal Custody is where the parents work together to share care and control of the upbringing of the child, even if the child has only one primary residence. Additionally, one parent may be given "tiebreaking" authority (the final word in cases of disagreement), or each parent may have certain areas of decision making authority.
In Shared Physical Custody the child has two residences, spending at least 35% of the time with each parent.
The Best Interests of the Child Standard
Regardless of any agreement you may have reached, the courts will look at custody to determine the "best interests" of the child. They look at several factors. It is important to remember that no one factor is more important than any other. The following list is some, but not all, of the factors, that courts will consider.
- 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 under 7 years. 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 making 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. Read the Law: Md. FAMILY LAW § 9-107
Joint Custody Agreements
Parents can also agree on some combination of shared physical and joint legal custody. One example of this is when there is one residence for the child and the parents live with the child there on a rotating basis.
The court looks very closely at Joint Custody agreements. The most important factor to 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.
Other factors include:
- willingness to share custody;
- child's relationships with parents;
- child's preference;
- ability to stabilize child's school and social life;
- closeness to parent's homes (primarily a factor during the school year);
- employment considerations (e.g. long hours, extensive travel, etc.);
- age and number of children;
- financial status;
- benefit to parent.
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 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 entering into an agreement or you may be jeopardizing your benefits. This list is not meant to be complete and the court will hear anything that they believe to be relevant.
Can a child have input into 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. Read the Law: Md. FAMILY LAW § 9-103
When do grandparents or other relatives have custody or visitation rights?
Generally, the natural parents will have a presumptive right to custody. Only in cases where the parents are found to be 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. Read the Law: Md. FAMILY LAW § 9-102
What happens if the non-custodial parent refuses to return the child to the parent with custody?
If a child is under 16 years of age, it is unlawful to keep that child for more than 48 hours within the state of Maryland, or remove the child from the state of Maryland for more than 48 hours, after the lawful custodian has demanded the child's return. Read the Law: Md. FAMILY LAW § 9-304
"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 and subject matter. The court must have both types of jurisdiction to hear a case. Personal jurisdiction, the power to require a person to appear in court, is discussed in the Service of Process section of this web site. In Maryland, subject matter jurisdiction to hear custody and visitation cases is 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 master. 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 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:
- Maryland was the child's home state within the last six months and
- The parent filing for custody continues to live in Maryland
- The child and at least one of the parents have 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).
If the parents are unmarried, the child is the child of his/her mother. In order for the father to claim rights to the child (including rights to custody or visitation), paternity must be admitted or established in court. For more information on unmarried people who live together, see the section on Unmarried Cohabitants.
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.
Once paternity is established, neither mother nor father is given a preference based solely on their gender. The Domestic Relations forms do not cover paternity actions.
Custody - As of October 1, 2006, Maryland courts are prohibited from awarding custody or visitation to parents limitations who have been found guilty of first or second degree murder of:
- the other parent,
- another child of the parent,
- or any family member residing in the household of either parent.
Read the Law: Md. FAMILY LAW § 9-101.2
What if we disagree about custody and visitation?
If you and your spouse 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. You may also ask to cover other issues such as marital property if you choose. 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. It is also important to get a legal advisor for this process. The mediator's role is not to take sides, but to bring the two sides together. Additionally, if the mediator is not an attorney, he/she may be unaware of some specific legal issues.
Court Ordered Mediation
The court has the power to order you and the other side to go to mediation. See Md. Rule 9-205. This is true whether
- your case is just starting;
- you are requesting modification of an existing order; or
- or you are filing a contempt action.
- You should be aware, however, that if mediation is ordered by the court 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 recommend that the court order 2 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 pay for the mediation.
Custody Agreements: What if we agree about custody and visitation?
If you and the other parent have already come to a fair agreement on the custody and visitation issue, you may want to write your own "stipulation" and consent order. A "stipulation" is a statement describing the agreement that you have reached. A consent order is a draft for the judge to sign if s/he agrees to accept your agreement. This means that the court can enforce the agreement in the future.
If you choose to go this route, you and the other parent should be as specific as you can to avoid future conflicts. You should ask yourself, who has legal custody? 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 are 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 actually blow up into a full scale war later. The Stipulations should state everything that you have agreed upon. You should not rely on any oral promises. If you both agreed on it, write it down (no matter how trivial it may seem now). Your agreement should be included with your Complaint for Custody (DR 4), Complaint for Visitation (DR 5) or Complaint for Divorce (DR 20 or 21). Additionally, you should be sure to read this full section before proceeding in order to avoid having your stipulation and consent order ignored by the court or giving away rights of which you were unaware.
When the Custody Order Agreement is Violated
People go into courthouses everyday telling clerks that the parent has not returned the child at the scheduled time following visitation and they don't know what to do. When a custody order is violated the law requires the custodial parent/lawful custodian to first demand the return of the child.
If the abducting parent remained within the state, it can be a misdemeanor. The person can be fined $25 or imprisoned for up to 30 days. If the abducting parent crosses the state line, it can be a felony. The person can be fined $250 -$1000 and/or imprisoned 30 days to 1 year. If the child has actually been stolen by the other parent you should report this to your local police department immediately. The FBI can be called in to find the fugitive parent and the child as well.
The only exception to this rule is when the child is in clear and present danger (the victim of abuse or abandonment) requiring the non-custodial parent to save them. The non-custodial parent must be ready to prove this clear and present danger and they are required by Maryland law to file a petition within 96 hours. In that event, both parents will need a lawyer. Read the Law: Md. FAMILY LAW § 9-304, Md. FAMILY LAW § 9-305, Md. FAMILY LAW § 9-306, Md. FAMILY LAW § 9-307.
Modification of Custody
When a parent seeks to have the custody order changed, it is his/her burden to show the court why it 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 there is something in the environment that will harm the well being of the child. This is not as simple as it may seem. You will have to show that your home will be better than the home of the custodial parent (not just as good). To do this 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 thought to be equal, then custody will stay as it is. Remember, a temporary or "pendente lite" custody order is not a final order. You would not be required to show a substantial change in circumstances to have temporary custody changed in the "permanent" custody order.
A child at least 16 years of age can seek a change in custody on his/her own. However, it will be the minor's burden to prove that a change of custody would be in his/her best interests at this time. Read the Law: Md. FAMILY LAW § 9-103
The court that made the original custody and visitation order retains jurisdiction to decide modification unless the parties and child no longer have close ties to the court and the court surrenders its jurisdiction. However, the court with original jurisdiction may refuse to hear the custody case if a child has been wrongfully taken from another state or taken without the consent of the person entitled to custody.
Usually the parent with custody can claim the exemption for the child. However, the parents may agree to claim the child exemption on alternate years. In that case, the parent with custody needs to sign IRS Form 8322, Release of Claim to Exemption. Whether or not you are taking the exemption for the child, you may still file as "head of household."
For more information, see the book below. It should be available at any of the public law libraries in the state.
Cynthia Callahan & Thomas C. Ries, Fader's Family Law §15 (Lexis Publishing 2011)