Child custody and visitation can be a heartbreaking, contentious and difficult issue to navigate for divorcing couples and unwed parents alike. Resolution of child custody disputes are often achieved with the help of attorneys or mediators, or by a court order. Child custody is considered as two separate components: “Physical” custody (also known as “residential” custody or “access”) and “legal” custody. Physical custody defines where the minor children reside and when they spend time with each parent, while legal custody governs how the parents make major decisions regarding the children’s education, religion, medical treatment and general health and welfare. Many courts now require that parties file formal Parenting Plans that address both the access schedule and decision making. A parenting plan is a child custody plan that is negotiated, or submitted to the court by each of the parents, and which may be included in a marital separation agreement or final judgment of divorce.
One important decision facing many parents is in what court to file for custody. Nearly every state in the United States, including Maryland, Virginia and the District of Columbia, has adopted the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) which vests “exclusive [and] continuing jurisdiction” for child custody litigation in the courts of the child’s “home state.” Home State for purposes of making a child custody determination is defined as the state where the child has lived with a parent for six consecutive months prior to the commencement of the proceeding (or since birth for children younger than six months). If the child has not lived in any state for at least six months, then a court in a state that has (1) “significant connections” with the child and at least one parent and (2) “substantial evidence concerning the child’s care, protection, training and personal relationships” may assume child-custody jurisdiction. An experienced attorney will be extremely helpful in navigating in which jurisdiction your child custody case should occur.
Many factors affect a client’s custody plan, including psychological and behavioral considerations of the children and the parents. Our attorneys have developed a wide range of contacts among the various professions that can help develop a parenting outcome that is in the best interest of children.
For unmarried parents involved in a custody dispute, the process is largely the same as for married couples. Child custody and visitation will be resolved through agreement between the child’s parents or by the applicable family court. If unmarried parents do not reach a child custody and visitation agreement out-of-court, the matter will go before a family court judge for resolution. In deciding custody between unmarried parents, the court will often give considerable weight to the parent identified as the primary caretaker—if there is one.
Every child custody case is different and has a unique set of facts and circumstances, and there is considerable variation in the process and procedures within each jurisdiction. Where the parties are not able to agree to a custody arrangement for their children, custody can be a drawn-out and complex process. When the future of your child is at stake, you need to have an attorney with the knowledge and experience to direct the process and assist in finding the best result for you and your children.
Maryland law has no custodial presumption in favor of either parent, nor does it have a presumption in favor or against joint custody.
Maryland law recognizes the following types of custody:
Temporary Custody: Temporary custody (also called pendente lite) formalizes custody arrangements before a permanent custody decision is made and while the case is ongoing. This usually is obtained at a Pendente Lite hearing that occurs relatively early in the process. Pendente Lite custody determinations must be specifically requested as part of the litigation.
Physical Custody: Physical custody may be either sole or joint. Many considerations, including the needs of the children, the current living arrangements and the history of the family, help determine the exact access schedule that will constitute physical custody in any given case. Many options exist, and parents often obtain the input of experienced professionals in the mental health field to help with this decision, whether in mediation, negotiation or litigation.
Legal Custody: Legal custody also can be either sole or joint. An important factor in deciding whether legal custody will be sole or joint is the ability of the parents to communicate together in making agreed decisions for the children. Many other factors go into the decision of what is the best legal custody arrangement for a family whether in court, mediation or negotiation. Attorneys have developed a large number of options to address parental decision making in the context of joint legal custody, especially where agreement is elusive, including final tie-breaking decision-making authority being vested to one parent, required mediation before a legal custody decision may be made, required consultation with a competent outside neutral professional who makes recommendations to parents before legal custody decisions occur, and/or referral to a Parenting Coordinator. A Parenting Coordinator (“PC”) is a neutral third party who helps separated or divorced high conflict parents resolve child-related disagreements outside of court. In the short run, the purpose of getting a PC involved in such cases is to avoid future court appearances.
Split Custody (of 2 or more children): Split custody is best described as the situation where each parent has either physical or legal custody of at least one child.
Shared Physical Custody: Refers to the situation for child support purposes when the child spends at least 35% of overnights with each parent.
While no list of factors can be exhaustive given the individual characteristics of each custody case, here is a list of factors often considered by Maryland courts in custody:
- Fitness of parents
- Character and reputation of parties
- Desire of parents and agreements between parties
- Potential of maintaining natural family relations
- Preference of the child
- Material opportunities affecting the future life of the child
- Age, health and sex of the child
- Residences of the parents and opportunities for visitation, or geographic proximity of parental homes
- Length of child’s separation from parent
- Prior voluntary abandonment or surrender
The considerations in awarding joint custody add complexities such as: (1) capacity of parents to communicate and reach shared decisions affecting child’s welfare; (2) willingness of parents to share custody; (3) relationship between child and each parent; (4) potential disruption of child’s social and school life; (5) demands of parental employment; (6) sincerity of parent’s request; (7) financial status of parents; and (8) benefit to parents.
With regard to already established custody arrangements (by agreement or court order), the court may modify agreements made between parents concerning custody and visitation if doing so is in a child’s best interests. However, after a court enters an order of custody or visitation (including an order approving and incorporating the parents’ agreement into its order), the custody order may be modified only upon a showing of changed circumstances affecting the child’s welfare since the date of the last custody order.
If you have any questions, or would like to speak with an experienced attorney to advise you on any concerns you have about child custody, please do not hesitate to call us to set up a consultation. Contact us if you would like to discuss your MD, VA or DC initial custody determination, custody modification or grounds for an emergency order with one of our Family Law team members.